310 Mass. 259 | Mass. | 1941
The plaintiff, a wholesale distributor and retail dealer in automobile tires, sold one hundred tires to the defendant Sherman on September 11, 1939, for $854.10. Upon receipt of these tires, on September 11 and 12, by Sherman, they were immediately transferred and sold to the defendant Irving Berman, hereinafter called Berman, for $700. Berman maintained two stores under different names and his wife, the defendant Doris Berman, filed a married woman’s certificate purporting to show that one of these stores was conducted by her. Sherman was adjudged a bankrupt upon a voluntary petition filed on September 18, 1939, and the defendant Rubin, trustee of the bankrupt estate, appeared and claimed the tires or their value. The plaintiff on October 6, 1939, brought this bill in equity to set aside the sale of the tires. From a final decree adjudging that the trustee had no interest in the tires, ordering Berman to deliver the tires to the plaintiff, and dismissing the bill as against the defendant Doris Ber-man, Irving Berman appealed, and the plaintiff appealed on the ground that it was entitled to recover from both Irving Berman and Doris Berman the value of the tires at the time when they were sold to Sherman.
The bill is based upon two grounds: first, that the sale from Sherman to Berman was in violation of G. L. (Ter. Ed.) c. 106, § 1, the sales in bulk act; and second, that the sale to Sherman was procured by fraud, that the subsequent sale to Berman was made by Sherman without fair consideration and with intent to hinder, delay and defraud, and that Berman should reasonably have known of such intent.
The present suit having been commenced subsequently to the filing of the petition in bankruptcy by Sherman, the plaintiff then had no right to bring a suit to set aside the transfer to Berman on the ground that it did not comply with the bulk sales act, and to apply the tires to the satisfaction of its claim to the exclusion of the other general creditors of Sherman. Glenny v. Langdon, 98 U. S. 20. Trimble v. Woodhead, 102 U. S. 647. Moyer v. Dewey, 103 U. S. 301, 303. Acme Harvester Co. v. Beekman Lumber Co. 222 U. S. 300, 308. Bingaman v. Commonwealth Trust Co. 15 Fed. (2d) 119. Gochenour v. George & Francis Ball Foundation, 35 Fed. Sup. 508, affirmed 117 Fed. (2d) 259. Where suits by creditors were pending before the filing of a petition in bankruptcy, see Straton v. New, 283 U. S. 318; Taylor v. Sternberg, 293 U. S. 470.
The plaintiff, apparently attempting to avoid the difficulty that must be encountered if it proceeds on the theory that the tires were a part of the assets of the bankrupt, framed its bill on the further ground that it was entitled, on account of the fraud of both vendees, to a reconveyance
The plaintiff was not seeking in its bill to establish any joint liability upon the part of the trustee in bankruptcy. The trustee did not appeal and the decree could not be modified in his favor upon the plaintiff’s appeal, nor could he avail himself of a defence raised by one of the other defendants on his appeal if the facts alleged in the bill are sufficient to give relief. Kilkus v. Shakman, 254 Mass. 274, 280. Pofcher v. Fisher, 272 Mass. 78, 83. The bill, how
The final decree must be reversed and a decree entered dismissing the bill.
Ordered accordingly.