Schoenbrod v. Central Trust Co. of Illinois, 238 F. 775

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238 F. 775 | 7th Cir. | 1916

Lead Opinion

EVANS, Circuit Judge

(after stating the facts as above). [1] The answer to the following question disposes of this case: Does the evidence justify the order of the District Judge in reversing the order of the referee, based on the finding quoted above ?

In support of the referee’s order it is urged that, as the referee has seen and heard the witnesses, his finding will not be disturbed, if supported-by credible evidence; and it is contended that a finding “on reasonable grounds to believe,” as used in section 60b of the Bankrupt Act is a finding of fact. In re Eggert, 102 Fed. 735, 43 C. C. A. 1. But it was not necessary for the court to find the creditor actually knew the bankrupt was insolvent. Nor was appellant’s conclusion that he had no ground to believe the bankrupt was insolvent controlling, if an ordinary business man with the same facts would have be-^ lieved the bankrupt was insolvent. Wright v. Sampter (D. C.) 152 Fed. 196; Pratt v. Columbia Bank (D. C.) 157 Fed. 137.

[2] The facts, from which the ultimate conclusion was to be drawn, were not much in dispute. The issue was a narrow one. Most of the elements necessary to constitute a preference were admitted.' The assignor was admittedly insolvent in fact. The assignment admittedly operated to give the appellant a preference. The only remaining element, the issue in dispute, was over the creditor’s reasonable ground for belief.

Upon the facts related we believe the ordinary business man, or the “ordinarily intelligent man,” would have been put on inquiry to make the investigation, which, if made, would have spelled insolvency. No ordinary business man, with $4,500 of unsecured, past-due indebtedness, unable to force the payment of even a part of it, would have received an assignment from his brother-in-law on a Sunday morning, the day before a petition in bankruptcy was.filed, two days after a judgment was taken, without making inquiry, either by an examination of the records, or by questioning the officer, then and there present, and ready and able and willing to give him the information that would have established beyond a doubt the insolvency of the assignor. A creditor is chargeable with certain information though he may have no actual knowledge thereof. Failure actually to investigate will afford no excuse, where the creditor’s information was sufficient to have put the ordinary business man upon inquiry. In re McDonald & Sons (D. C.) 178 Fed. 487; Rogers v. Page, 140 Fed. 596, 72 C. C. A. 164; McElvain v. Hardesty, 169 Fed. 31, 94 C. C. A. 399; Huttig Mfg. Co. v. Edwards, 160 Fed. 619, 87 C. C. A. 521.

We cannot escape the conclusion that the answer to the determining question put in the first paragraph must be in the affirmative and *778that the District Court was correct in reversing the- order of the referee.

The decree is affirmed.

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Dissenting Opinion

MACK, Circuit Judge

(dissenting). The referee saw the witnesses; the conclusions of the District Judge and of this court are based entirely upon the transcript of testimony heard-by the referee.; I am not prepared to say that the evidence irresistibly points to but one conclusion, that the creditor had reasonable ground to believe this debtor insolvent at the time of the transfer.