212 Pa. 188 | Pa. | 1905
Opinion by
Previous to July, 1901, Emma C. Kintz, trading as Kintz & Company, carried on a general store business at Tamaqua,Pennsylvania. Her husband, David Kintz, managed the store under a general power of attorney for his wife. In July, 1901, Kintz & Company owed considerable money, and were alleged by plaintiff to have been insolvent. On July 5, 1901, Mrs.
The testimony of David Kintz, who was called as a witness by plaintiff, showed that a consideration of $1,200 for the bond, bill of sale, etc., was paid by Zehner at or about the time they were executed, and that Zehner had also indorsed a note of Kintz & Company, for $545 which was held by the bank. Zehner did not take possession of the business or of the contents of the store at the time the bill of sale was executed and delivered, but the same remained in the possession of Kintz & Company and the business went on as before under the management of David Kintz.
On January 25, 1902, Mrs. Kintz, trading as Kintz & Company, executed and delivered to Zehner a writing which was indorsed on the original bill of sale as follows : “ Whereas the above mentioned sum of $1,200 due Jacob Zehner is still due and unpaid, and whereas the said Jacob Zehner has indorsed notes amounting to $545 in favor of Kintz & Company, which notes Kintz & Company cannot pay at maturity; therefore, full possession of the stock, goods and fixtures of Kintz & Company is this day given to Jacob Zehner absolutely as full owner thereof.”
At this date Kintz & Company were admittedly insolvent. No money was paid by Zehner when this last power was executed. Zehner at once took possession of the store. The signs were changed, and the business was continued in Zehner’s
On May 17, 1902, a petition in involuntary bankruptcy was filed against Emma C. Kintz, trading as Kintz & Company, and on February 11, 1903, she was duly adjudicated a bankrupt. Charles E. Christ was appointed trustee, and as such trustee brought the present suit against Jacob Zehner to recover the sum of $2,200.78 (alleged to be the value of the stock of goods turned over to Zehner on January 25, 1902, and $299.22 collected by him from book accounts of Kintz & Company turned over to him at the same time), on the ground that the transfer of the goods and books constituted, under the bankrupt law, a preference given less than four months before the filing of the petition.
Upon the trial of this case a compulsory nonsuit was entered which the court in banc refused to take off. The refusal to take off the nonsuit is assigned as error.
In the opinion filed the court below held that the title to the goods sold to the defendant passed with the delivery of the bill of sale of July 5, 1901, more than four months before the institution of the bankruptcy proceedings, and at a time when defendant had no knowledge nor reason to believe that Kintz & Company were insolvent, and that the bill of sale, therefore, did not constitute an unlawful preference. It is claimed by appellant that the title to the goods did not pass until the delivery of possession on January 25, 1902, which was within the four months and after the defendant had knowledge of the insolvency of Kintz & Company. In so far as the bill of sale of July 5, 1901, is concerned, it clearly did not constitute a preference. It was outside the statutory period of four months. Nor is there any evidence that defendant had reasonable cause to believe that a preference was intended. The consideration for the bill of sale was not an antecedent debt, but it was money paid at the time and to be paid in the future.
The only question remaining, then, is as to when the title to
In Collins’s Appeal, 107 Pa. 590, Justice Gbeen (p. 605) collects the cases showing that possession, of the subject of pledge is not necessary to protect the pledgee’s title “ where tiie possession of the pledge is by the agreement of the parties to remain with the pledgor.”
We can see nothing in the evidence in this case which would constitute an unlawful preference, or which in any way violates the provisions of the bankrupt law¡ The specifications of error are overruled, and the judgment is affirmed.