84 F. Supp. 230 | D.N.H. | 1949
This proceeding was filed May 27, 1948, as a debtor’s petition, and was signed by Henry F. Reddington, who purported to be the treasurer of the corporation, and who claimed authorization to so act by virtue of a special meeting of the board of directors thereof held May 18, 1948, at Wind-ham, New Hampshire. On the same date a motion was made for the appointment of a trustee, and thereupon an order was issued approving the debtor’s petition and appointing a trustee. Thereafter, on June 10, 1948, one Joseph G. Goldfarb filed a motion as a creditor of Peterson’s Motor Express, Inc., wherein he moves that the proceedings for reorganization of said corporation be dismissed, alleging that the petition does not comply with the requirements of Chapter 10 of the Bankruptcy Act, 11 U.S.C.A. § 501 et seq.; that the corporation is solvent and able to pay its debts as they mature; that there is no need of corporate reorganization under Chapter 10; that the petition was not filed in good faith; and that the proceedings in reorganization are unwarranted and will cause serious and irreparable damage to the corporation. Upon these pleadings, several hearings were had, with full opportunity given counsel to litigate the questions raised thereby. Much extraneous evidence was introduced upon the claim that collateral matters would have to be explored in order that the real issues be fully presented. Upon petition of the trustee for authority to employ an accountant, such was authorized, and a certified public accountant examined the accounts of the corporation, final report thereon being delayed because of various difficulties.
The Peterson Motor Express, Inc., is a corporation engaged in the motor trucking and express business, and negotiations for its purchase were entered into by Henry F. Reddington sometime during the year 1946. The corporate structure consists of 500 shares of common stock without par value and 100 shares of preferred stock with par value of $100, of which are issued and outstanding 200 shares of common stock and 10 shares of preferred stock, then owned by the Peterson family. Lacking sufficient funds to acquire the stock, Reddington consulted with one Isadore Goldfarb, of Boston, for financial aid to consummate this purchase. It appears that Goldfarb was in the business of lending money and upon previous occasions had made loans to Reddington. Under the arrangement entered into with Goldfarb, Reddington, in his position as president and treasurer, executed a note and a hill of sale to Goldfarb of all the physical property of the corporation and the Certificate of Public Necessity issued by the Interstate Commerce Commission, and Goldfarb in turn executed a conditional bill of sale to the corporation. The actual consideration received by Peterson’s Motor Express, Inc., was $35,000, but the note and bill of sale were in the sum of $42,000, which Reddington signed as an officer of the corporation and in his individual capacity. As additional security Goldfarb required that the stock of the corporation be assigned to him and that Reddington and the other officers execute their undated resignations, which were to be held by him. In addition to this obligation, on December 6, 1946, a mortgage was entered into between the corporation and the Peter-sons and a note executed in the sum of $11,000 to secure a balance unpaid, and the Petersons retained possession of the stock certificates as further security. The certificates which Reddington assigned in blank are not certificates duly authorized by the corporation, and do not bear the impression of the original seal of the corporation, but are spurious, and were issued by Reddington in his capacity as president and treasurer to himself, and
Under Chapter 10 and upon the foregoing are posed two questions: Was the corporation on May 27, 1948, insolvent or unable to meet its debts as they matured; and, Is the petition brought by one duly authorized to bring such petition. The burden of establishing proof under these issues is upon the petitioner, and, to maintain the petition, both must be established by adequate proof to satisfy the court that the petition is within the purview of Chapter 10. Whatever the formal defects in the petition, it would seem that such have been cured by the evidence offered. Moreover, this being an
It is the movant’s contention that the petition was brought by one not so authorized, and, for that reason, should be dismissed. This claim may not be maintained. The stock which bore the assignment of Reddington and delivered to Goldfarb was not the stock of the corporation, title to which was unaffected by such endorsement and delivery. The evidence permits at most a finding that Reddington pledged the stock as security and had no intention of divesting himself of title in this or in the real stock. Even if he had so intended, and was dealing with valid certificates, he would be precluded by both the New Hampshire statute relating to business corporations, R.L., Chapter 274, § SS, and by the articles of agreement and the by-laws of the corporation. Whatever the equitable rights acquired thereunder by Goldfarb, either in the real or in the spurious stock, the legal title to the former remains in Reddington. For the purpose of filing these proceedings, he can, in his capacity as an officer of the corporation with authority granted to him by the board of directors, legally act. It is my conclusion that in bringing this petition the essential requirements have been met, and the jurisdiction and relief under Chapter 10 have been properly invoked.
The motion of Joseph G. Goldfarb is denied.