153 Mass. 502 | Mass. | 1891
1. The main question before us is whether the payment to the defendant by Flanders appears, as matter of law, to have been made in the usual and ordinary course of business. The plaintiff does not seek to avoid Flanders’s sale of his stock in trade, as in Walbrun v. Babbitt, 16 Wall. 577. On the contrary, his claim to the proceeds is based upon an affirmance of the sale. The only way in which the sale, or knowledge of it and of the manner in which it was made, could be considered to the defendants’ disadvantage would be as bearing on their actual good faith when they took the notes, if the
But when we take into account all the circumstances of the payment in question, we are unable to say that a jury, or in this case the judge, would not have been warranted in finding that it was not made in the usual and ordinary course of business, as matter of fact. It was made late at night, following close upon the sale, and almost as a part of it. Although the plaintiff affirmed the sale, he had a right to argue that the defendants knew it to be a sale which could not stand against an assignee in insolvency if he elected to avoid it, that the defendants took the proceeds with that knowledge, and that they were not in the position of receiving payment from a debtor who had gone out of business at a previous time. Although the greater part of Flanders’s account with the defendants was overdue, the credit allowed on the later items had not expired. Flanders never before had paid his bills until they became due, or otherwise than by check or cash, and he at least must have known that he was giving the defendants a preference. We express no opinion upon the weight of the argument, but we are of opinion that the case falls midway between the extremes marked by such cases as Nary v. Merrill, 8 Allen, 451, and Pearson v. Goodwin, 9 Allen, 482, where the court can rule one way or the other, and that the question should have been passed upon as a question of fact, even if doing so would have had the same result, which we cannot assume. Alden v. Marsh, 97 Mass. 160, 163. Buffum v. Jones, 144 Mass. 29, 30. Stevens v. Pierce, 147 Mass. 510. Pearson v. Goodwin, 9 Allen, 482, 483.
2. It was proved that when Flanders went into business he borrowed about eighteen hundred dollars of his brother for the purpose of carrying it on, and that at the time of the sale he still owed his brother the same amount, and also owed a large amount for merchandise, the total value of his assets being fifteen hundred dollars. The defendants’ agent testified that he
New trial granted.
