Watson v. Poague, 42 Iowa 582

Watson v. Poague

42 Iowa 582 | Iowa | 1876

Adams, J.

It is claimed by the said Poague and "Wood, defendants and appellants, that the plaintiff is not entitled to recover in this case because, 1st. If the indorsement was made by mistake it was a mistake of the law. 2d. That he obtained the payment by fraud, and having lost the advantage of his fraud, a court of equity will not now relieve him, and 3d. That by receiving payment he precluded the defendants from protecting themselves.

1. PROMISSORY note: equity: banckruptxcy. The true ground of the plaintiff’s relief is, not that the indorsement was made by mistake, but that he lost the benefit payment for which the indorsement was ma(ie 011 account of the subsequent proceedings in bankruptcy, an event which at the time of payment was wholly contingent, and, therefore, beyond the knowledge of any human being.

*584It was immaterial whether he did or did not know the provisions of the bankrupt act, or whether he did or did not know that Griffith was insolvent. It was proper for him to receive the payment. But if he received it knowing that Griffith was insolvent, he received it subject to the rightful claim of an assignee in bankruptcy, if an adjudication in bankruptcy should take place upon a petition filed within four months thereafter.

2_._. fraud. It is true that the receiving of the payment under such circumstances is called, in the bankrupt act, accepting a fraudulent preference, but it was not an actual fraud, nor would it have been even a constructive fraud if an adjudication in bankruptcy had not taken place upon a petition filed within four months.

Besides, whatever was done was not done with intent to wrong the defendants, but rather to protect them. If plaintiff had declined to receive the payment, especially if Griffith was insolvent, the defendants might justly have complained.

There was at least a possibility that no adjudication in bankruptcy would take place upon a petition filed within four months. But it did take place, and now the plaintiff asks relief, not against his own fraud, but because the payment which he properly received has been held, by reason of what afterwards transpired, and under the peculiar provisions of the bankrupt law, to have been made to him in trust for all the creditors of Griffith.

3_______: surety. It is not impossible that the acceptance of a payment by a creditor from his bankrupt debtor might mislead a surety of the debtor to his injury, but that, we think, would be the surety’s misfortune rather than aground of defense in a case like this, where the creditor had acted in good fkith towards the surety, and had been reasonably diligent to save him from loss. A surety cannot be discharged where the creditor is without fault.

By a mistake in computation the decree as rendered was too large by $12.03. It should be reduced by that amount.

With this modification the decree is

Affirmed.