186 F. 302 | 2d Cir. | 1911
(after stating the facts as above).
The district judge found that the written offer concededly made to the committee of creditors was by it accepted within the three days and transferred to the new receiver with the full consent and approval of liegeman & Co. There are conflicting statements in the affidavits and petitions; but, after a most careful perusal and analysis of them, we are entirely satisfied that this finding is correct. Indeed, there is sufficient in the papers submitted by appellant to show that during the period immediately succeeding the appointment of the new receiver it entered into negotiations with him which contemplated such action on his part as would enable him to carry out the terms of the contract and to give Hegeman & Co. a good title thereunder. We do not hold that these various statements show an estoppel, or anything of that sort, but find in them evidence entirely persuasive to the conclusion that its representatives knew that a contract had been made by offer and acceptance and were concerned merely in making sure that Hegeman & Co. should get a good title to what it had agreed to buy. When the order of May 6th was made, authorizing and empowering the receiver to sell the specified property at private sale in accordance with the offer of Hegeman & Co., its counsel was present. Respondent’s papers would indicate that he united in the application, although the order does not recite the fact. An affidavit of the treasurer of Hegeman & Co. asserts that counsel “attended court at request of counsel for receiver to explain the situation to the court and the financial situation of Hegeman & Co.”; counsel himself makes no statement as to what took place before Judge Holt on May 5th, although three affidavits by him referring to other matters are found in the record. Tf there were any question about the acceptance of the offer by the committee within the three days, we should find no difficulty in reaching the conclusion that on May 5th Hegeman & Co. assented to the acceptance of its offer by the receiver, subject only to the qualification that such acceptance should amount to nothing, if the court failed to approve of a sale upon the terms indicated.
It is further contended by the appellant that there is no evidence,' except statements in the affidavits of receiver and his counsel,-- that receiver is in a position or has power to convey the property referred to in the order; and that appellant has never been tendered any documents conveying or purporting to convey a clear and valid title to the property. It should be remembered, however, that ever since August 11, 1910, when its vice president asserted that it had ceased to be interested in the Jungmann proposition, it has uniformly insisted that it never made any contract at all. Of course, if it had made no contract to purchase, all questions as to seller’s title would be academic. The affirmance of this order will in no way impair appellant’s right to insist upon its objections to the validity of the documents by which the seller may endeavor to carry out the terms of the contract. When application shall be made to punish for disobedience of the order, proof that the receiver has failed to tender what the contract called for will be a complete defense.
If in fact they did so participate or had opportunity to participate, of which they chd not avail themselves, this reversal will not prevent
In one other respect the order is open to criticism. The contract provided for payment one-third cash, one-third 6 months’ note, and one-third 12 months’ note. The order recites that since the making of the inventories goods have been sold and bought by the receiver— both stores are going concerns — and a referee is appointed to ascertain what amount has been so sold and bought and whether the total value of the merchandise is less at the time of the transfer of possession than that found by the appraisers, such reduction, if any, to be credited to Hegeman & Co. This is a proper provision, but the order further directs that such amount be credited on the notes only; it should be credited in proportions like those named in the contract, one-third on the cash payment and one-third on each of the two notes.
The order is reversed, without prejudice to its re-entry when objections referred to in this opinion are removed.