49 F. Supp. 781 | E.D. Wash. | 1943
On May 14, 1942, adjudication of bankruptcy in this matter was entered. On January 19, 1942, bankrupt had transferred certain personal property to Sherman A. Harn, one of the creditors to whom he was indebted for wheat delivered the previous fall. He also had paid $250 in cash and executed a mortgage on certain other personal property and had made an assignment of certain of his accounts receivable to Harn on the same day. The Trustee filed with the Referee a petition for a rule vacating preference. Testimony was taken before the Referee and, in an opinion in which he set forth his findings of fact and conclusions of law, the 'Referee sustained the position of the Trustee on the ground that the transaction of January 19, 1942, was an avoidable preference. This is an appeal from the Referee’s order.
While presumptively a Referee’s findings of fact are correct, they need not be accepted by the Court if they are clearly erroneous. General .Orders in Bankruptcy 47, 11 U.S.C.A. following Section 53; 6 Am.Jur. 566; Yutterman v. Sternberg, 8 Cir., 86 F.2d 321, 111 A.L.R. 736; In re Duvall, 7 Cir., 103 F.2d 653; Kowalsky v. American Employers Ins. Co., 6 Cir., 90 F.2d 476.
Since^there was no testimony as to the insolvency of Mason at the time of the transfer and since there was no testimony that Harn received a greater percentage of his debt than other creditors of his class, the action of the Referee was clearly erroneous and the order of the Referee is reversed and vacated.