159 F. 286 | W.D.N.Y. | 1908
The claim of George W. Pfohl of $2,003.60 for merchandise sold and delivered to the bankrupt was allowed by the referee for $3.60 only, on the ground that the claimant had received to apply thereon, pursuant to agreement, $2,000 in stock of the said bankrupt corporation. Claimant has petitioned for a review of said order.
The specific contention before the referee was whether, on or about October 8, 1906, the debt or balance in question was paid in part bv delivering to the claimant or his agent 200 shares of preferred stock of the corporation in question. The position of the trustee is that the creditor, at the time he sold the goods to the bankrupt, agreed to accept in part payment such shares, of the par value of $2,000. On the other hand, the objecting creditor claims that he did not so agree, that the stock was not delivered to him, and that one Dingens, who was claimed by the bankrupt to have negotiated the sale and to whom the stock was delivered, was not in fact his agent. The referee decided in favor of the trustee. His conclusions were doubtless influenced by the typewritten notation on the invoice; i. e., “Terms, 200 shares stock; balance 30 days from date” — which was mailed to the bankrupt about two weeks after deliver}' of the goods. The evidence indisputably shows, however, that in conversations, pri- or to the delivery of the merchandise, between Pfohl, Dingens, and Cavanaugh, the former repeatedly stated that he would not accept stock in part payment, which statement he reiterated on several occasions after such delivery. The testimony of Cavanaugh and Ding-ens, witnesses for the trustee, upon material features of the transaction and the terms of the contract of sale is wholly unsatisfactory, and certainly leaves vague and indefinite the intention of the parties
Counsel for the trustee contend that, as no formal exceptions were filed to the decision and ruling of the referee,1 his findings of -fact should not he disturbed. In the absence of a rule or order of this court requiring exceptions to be filed, such filing was not essential. The petition for review sufficiently indicates the single disputed question which is assigned for error. Nor is the court bound by the conclusions of the referee because the witnesses appeared before him and gave testimony. The evidence is not in serious conflict, and the conclusions are principally based upon inferences to be drawn from a peculiar state of facts. The inferences drawn by the referee are not thought to be sufficiently supported by the evidence, and therefore there can be no valid objection to a decision based upon the facts and circumstances according to the judgment of this court. In re Swift (D. C.) 118 Fed. 348.
The claim should be allowed in the sum of $2,003.60.