9 F.2d 486 | 2d Cir. | 1925
Lead Opinion
(after stating the facts as above).
We have held, quite plainly as it seems to us, that if A. in
This is a matter of general commercial law, in respect of which the decisions of the states in which the United States courts sit are not binding on the latter (Swift v. Tyson, 16 Pet. 1, 10 L. Ed. 865); but the same result in respect of issuance of drafts or the like was reached in Legniti v. Mechanics, etc., Bank, 230 N. Y. 415, 130 N. E. 507, 16 A. L. R. 185, even though a payment by A. to B. in consideration of receiving the latter’s draft or its equivalent, is to be regarded, not as an executed sale and transfer, hut as an executory contract (Gravenlurst v. Zimmerman, 236 N. Y. 22, at page 26, 139 N. E. 766, 27 A. L. R. 1465).
Therefore the question at bar is primarily one of fact; for if Jasper got a draft, cheek, or its equivalent, and in so getting received exactly what he asked for and something ho thought appropriate for his purpose, he cannot he heard to complain that the bankrupt was his trustee and committed a breach of trust. This question of fact must he answered in the light of all the circumstances.
Jasper had a credit in New York, in the shape of an ordinary deposit account with the bankrupts. He could have realized the cash he wanted out of that account and carried the same in his pocket to Germany. This he did not wish; so he arranged the scheme above outlined, by which he would he entitled to collect 9,000 actual dollars of the United States, as soon as the Leipzig bank identified him.
The machinery of payment was the letter, beginning, “We herewith open with you the following credit,” etc., pins the stated means of identification. We think that, in point of fact, this scheme was in effect the issuance of a check or order on Leipzig, payable only to Jasper on demand. If this. view, of the facts be received, then the transaction was the legal equivalent of handing Jasper a draft against his $9,090; there was no breach of trust, and can bo no recovery by way of reclamation or preference.
We point out that all tho requisites of a successful reclamation under tho cases first above cited must bo present, and we discover no proof that the fund proceeded against contains the $9,090 paid by Jasper to bankrupts.
Order affirmed, with costs.
Dissenting Opinion
(dissenting). If we were prepared to re-examine the rule laid down in Re Bolognesi, 254 F. 770, 166 C. C. A. 216, in Re Jarmulowsky, 258 F. 231, 169 C. C. A. 297, and in Re Shapiro (C. C. A.) 298 F. 1021, it would make no difference whether Jasper got what he bargained for or not. But that rule is authoritative in this court, and the issue is critical. I do not see how it can be said that the bankrupts had performed. Jasper did not ask for a letter of credit hut for a dollar credit in Leipzig. If he had .wanted the first, the bankrupts would have performed by giving him a letter — it would scarcely have been a copy — • introducing Mm to the Leipzig house, and promising them to honor all drafts drawn on them. That house would be under no obligation to Jasper of any sort or at any time. They would cash his drafts or not, as their relations with the bankrupts dictated; he would have no claim upon them.
But he wanted something quite different, a debt in his favor against the Leipzig house, and that the bankrupts undertook to “establish.” Ignoring any difficulty arising from Jasper’s not being a party to, hut only the beneficiary of, the arrangement, this debt was to bo created as follows: The bankrupts in effect were to write to the Leipzig house, asking them to enter a credit upon their hooks in Jasper’s favor. After complying, the Leipzig house would have charged the bankrupts with the amount, and the bankrupts would have credited them and charged Jasper. In fact, probably the bankrupts made the entries at once. It makes no difference whatever, because it was only after tho Leipzig house had got the letter, which was sent direct to them, and had made an entry in Jasper’s favor, that the bankrupts would have performed their promise to Jasper. Till then he had no' dollar credit with the Leipzig house. As this never happened, the ease 'S within the rule of In re Bolognesi.
