Tom v. Sampsell

Ninth Circuit

Tom v. Sampsell

131 F.2d 779, 1942 U.S. App. LEXIS 2948

CourtCourt of Appeals for the Ninth Circuit

DecidedNovember 30, 1942

DocketNo. 10180

StatusPublished

Cited by5 cases

This text of 131 F.2d 779 (Tom v. Sampsell) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Tom v. Sampsell, 131 F.2d 779, 1942 U.S. App. LEXIS 2948 (9th Cir. 1942).

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Opinion

MATHEWS, Circuit Judge.

Appellant and York K. Poon were employees and creditors of New Wells Market, a partnership composed of 11 partners. An involuntary petition in bankruptcy was filed against the partnership on July 10, 1941. The partnership was adjudged a bankrupt on July 16, 1941. Appellee was appointed trustee and, as such, brought an action against appellant and Poon for $12,-286.52, with interest and costs. Trial was had and judgment was entered in favor of appellee against appellant and Poon jointly for $4,396.34, with interest and costs. Appellant seeks reversal.

The judgment was based on findings to the effect that the partnership was insolvent on and after July 2, 1941; that appellant and Poon knew it was insolvent and, with such knowledge, conspired to have the partnership make certain payments to themselves and other creditors of the partnership, with intent to give them[780]*780selves and such other creditors a preference; and that between July 2, 1941, and July 10, 1941, pursuant to such conspiracy, payments were made by the partnership as follows: To appellant $1,505.64, to Poon $1,503.99, and to other creditors $1,386.71— a total of $4,396.34.

There was evidence that the payments were made, but there was no evidence that the partnership was insolvent when they were made. To prove such insolvency, it was necessary to prove that the partnership assets, together with the assets.of the individual partners available for partnership debts, were insufficient to pay such debts. Bankruptcy Act, § 67, sub. d(l), 11 U.S.C.A. § 107, sub. d(l); Francis v. McNeal, 228 U.S. 695, 699-701, 33 S.Ct. 701, 57 L.Ed. 1029, L.R.A.1915E, 706; Vaccaro v. Security Bank, 6 Cir., 103 F. 436, 441-443; Tumlin v. Bryan, 5 Cir., 165 F. 166, 21 L.R.A.,N.S., 960; Baker v. Bates-Street Shirt Co., 1 Cir., 6 F.2d 854, 858; In re Fuller, 2 Cir., 9 F.2d 553, 554. There was no such proof.

There being no proof that the partnership was insolvent, there was, of course, no proof that appellant knew it was insolvent; nor was there any proof that he entered into a conspiracy, or that the payments were made pursuant to a conspiracy.

Judgment -reversed.

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MATHEWS, Circuit Judge.

Appellant and York K. Poon were employees and creditors of New Wells Market, a partnership composed of 11 partners. An involuntary petition in bankruptcy was filed against the partnership on July 10, 1941. The partnership was adjudged a bankrupt on July 16, 1941. Appellee was appointed trustee and, as such, brought an action against appellant and Poon for $12,-286.52, with interest and costs. Trial was had and judgment was entered in favor of appellee against appellant and Poon jointly for $4,396.34, with interest and costs. Appellant seeks reversal.

The judgment was based on findings to the effect that the partnership was insolvent on and after July 2, 1941; that appellant and Poon knew it was insolvent and, with such knowledge, conspired to have the partnership make certain payments to themselves and other creditors of the partnership, with intent to give them[780]*780selves and such other creditors a preference; and that between July 2, 1941, and July 10, 1941, pursuant to such conspiracy, payments were made by the partnership as follows: To appellant $1,505.64, to Poon $1,503.99, and to other creditors $1,386.71— a total of $4,396.34.

There was evidence that the payments were made, but there was no evidence that the partnership was insolvent when they were made. To prove such insolvency, it was necessary to prove that the partnership assets, together with the assets.of the individual partners available for partnership debts, were insufficient to pay such debts. Bankruptcy Act, § 67, sub. d(l), 11 U.S.C.A. § 107, sub. d(l); Francis v. McNeal, 228 U.S. 695, 699-701, 33 S.Ct. 701, 57 L.Ed. 1029, L.R.A.1915E, 706; Vaccaro v. Security Bank, 6 Cir., 103 F. 436, 441-443; Tumlin v. Bryan, 5 Cir., 165 F. 166, 21 L.R.A.,N.S., 960; Baker v. Bates-Street Shirt Co., 1 Cir., 6 F.2d 854, 858; In re Fuller, 2 Cir., 9 F.2d 553, 554. There was no such proof.

There being no proof that the partnership was insolvent, there was, of course, no proof that appellant knew it was insolvent; nor was there any proof that he entered into a conspiracy, or that the payments were made pursuant to a conspiracy.

Judgment -reversed.

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131 F.2d 779, 1942 U.S. App. LEXIS 2948, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tom-v-sampsell-ca9-1942.

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