194 F. 564 | M.D. Penn. | 1912
The petitioner, Thomas H. Milligan, protests against making a part of the general fund for distribution the amount ($422.49) collected of the book accounts of Thomas H. Milligan & Co. by the bankrupt’s trustee, and asks that the same be turned over to John Lucas & Co. and the Keystone Farm Machinery Company in liquidation of their accounts against the said company, to which it is claimed the same was dedicated and pledged under the terms of the dissolution of the partnership company of which the bankrupt and the said Thomas H. Milligan were partners.
It appears that the partners, trading as Thomas H. Milligan & Co., having been engaged in the general hardware business, on August 2, 1909, by mutual consent and agreement in writing dissolved the partnership, transferring the business, stock in trade, all bills and accounts receivable, and the assets of the partnership, in general, to the partner H. B. Wilson, the bankrupt; the latter, as part consideration for such transfer, agreeing to secure for the other partner releases from certain debts due and owing by the partnership, and to pay and extinguish all remaining debts of the said firm existing on the 25th day of February, 1909, or since.
The petitioner, however, does not rest his contention upon the written agreement. He insists that some time prior to its date, and since February 25, 1909, it was orally agreed between the partners that Wilson should furnish Milligan a release from certain creditors, discharging him (Milligan) from all liability as a partner, and as to other creditors the same were to be paid by the collection of the book accounts due the said partnership from divers persons and companies, and that by the terms of this verbal arrangement or agreement the said accounts were set aside for that purpose and so dedicated.
It will be noted that the promise of Wilson to furnish releases and discharges of Milligan from certain of their creditors was made a part of the written dissolution agreement. Accounting, therefore, for the failure to incorporate the later portion of this alleged oral agreement, referring to the setting aside and dedication of the book accounts to the liquidation of certain accounts owing by the partnership, including those represented by the petitioner, it is said that:
“At the date and immediately prior to the agreement in writing, Wilson Informed Milligan, through his attorney, that he had collected of the book account assets so dedicated, and had paid off the accounts due from the partnership, which the petitioner supposed liquidated and extinguished all debts of the firm, except those from which releases were to be obtained, and, depending on this statement, the firm was dissolved under a written agreement of the 2d day of August, 1909.”
Allowing the petitioner all that he claims, it appears clearly established that by the terms and provisions of the later agreement in writing all of the book accounts receivable were transferred to the bankrupt including those since collected by the trustee, and reserving none. This conclusion is furthermore strengthened by the presumption that
There are other reasons supporting the conclusion reached, to which I will not allude. The findings, conclusion, and order of the learned referee are affirmed.