In re Weston

206 F. 281 | 2d Cir. | 1913

WARD, Circuit Judge.

This is an appeal from an order of Judge Hazel in the District Court denying the bankrupt’s petition for discharge. The specification of objection filed was:

“First. That such application should not bo granted because of the following facts, which the undersigned charges to be true, namely: The said William Weston, while conducting a brokerage business in the city of Buffalo, N. Y., during the years 1906, 1907, and 1908, failed and neglected to keep any books, with full and complete knowledge of the importance and necessity of books and records in the brokerage business, and with intent to defraud and deceive the undersigned and others.”

The petition was referred to the referee as special master, and the bankrupt at the first hearing moved to dismiss the specifications of objection on the ground that:

“They are insufficient, indefinite, and uncertain, and that the specifications do not specify facts which constitute legal ground for the court to deny a discharge to the bankrupt, and for the further reasons that they do not specify any legal objections to the bankrupt’s discharge.”

The special master permitted the specification to be amended so as to conform to the statute, viz., that the bankrupt “with intent to conceal his financial condition, failed to keep books of account or records from which such condition might be ascertained.”

The bankrupt was a commission broker and had been in business since 1899. He had the usual blackboard telegraph operator and marker, but no other clerks. His customers gave verbal orders, which he transmitted by telegraph to a firm in Cincinnati to be executed, making a memorandum on a piece of paper which he put on a spindle and afterwards made up from the memorandums a list of the day’s transactions on a sheet of paper. These sheets he kept “until all trades were closed out,” and they were thrown into the waste paper basket about once a month. He had a bank account ánd bank book, but kept most of his money in his safe, disbursing it as cash. His customers deposited a small margin on their orders, and actual deliveries were not contemplated. His profits were in the shape of* a commission of one-fourth of 1 per cent., paid him by the firm to which he transmitted his customers’ orders. Transactions with this firm were settled every day; the daily sheet showing whether he owed it or it owed him, and how much.

The referee found that the bankrupt had failed to keep any books of accounts or records with intent to conceal his financial condition, which was the sole ground of objection before him, and recommended that his discharge be denied. The District Judge took the same view.

[1] We think the specification of objection filed, though very inapt, fairly indicated the statutory ground upon which it rested, and that the special master had power to allow the amendment making it conform to the words of the statute. In re Hanna, 168 Fed. 238, 93 C. C. A. 452.

[2] While the daily sheets, if kept, would have shown the state of accounts between the bankrupt and the brokers who executed his customers’ orders, they would not have shown what commissions he actually collected, or what he did with them. No creditor could have told how much he owed, or how much he was owed. While the act does not expressly require books or records to be kept, it denies a discharge if the failure to keep them was with the intent to conceal the bankrupt’s financial condition. We agree with the special master and the District Judge that such intent is to be plainly inferred from the way in which the bankrupt transacted his business.

The order is affirmed.