290 Mass. 108 | Mass. | 1935
This is an action of contract brought by a trustee in bankruptcy to recover from the defendant certain payments alleged to have been made by the bankrupt Metropolitan Builders Supply Co. to the defendant, which payments are alleged by the plaintiff to be preferences. The answer was a general denial.
It appeared that on January 14, 1933, an involuntary petition in bankruptcy was filed against the Metropolitan Builders Supply Co. and Matthew Brown was duly elected trustee in bankruptcy of the company on February 28, 1933, and duly qualified. At the close of the trial, the defendant made certain requests for rulings. The judge denied request numbered 8 which was as follows: “The burden is on the plaintiff to prove that each of the payments received by the defendant had the effect of enabling the defendant to receive a greater percentage of its claim than other creditors of the same class could at the time of each payment have received.” In passing upon this request he said: “Not a correct statement of the law. . . . Preference is determined as of the date of filing the petition.” The judge found that “on November 8, 1932, and thereafter, the defendant had reasonable cause (1) to believe that the Metropolitan Builders Supply Co. was insolvent and (2) that payments made thereafter to them by the said Metropolitan Builders Supply Co. would effect a preference over other creditors of the same class. . . .” He found for the plaintiff in the sum of $1,688.29, with interest from the date of the writ. The case was reported to the Appellate Division. The report was dismissed, and the defendant appealed.
The only question argued by the defendant before this court is as to the time when a preference is to be determined. It is the contention of the defendant (1) that whether a payment operates as a preference is to be determined as of
It follows that there was no error in the denial of the defendant’s eighth request.
Order dismissing report affirmed.