282 F. 476 (4th Cir. 1922), 1956, Abdo v. Townshend

Docket Nº:1956.
Citation:282 F. 476
Party Name:ABDO et al. v. TOWNSHEND et al. In re TALIP et al.
Case Date:July 05, 1922
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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Page 476

282 F. 476 (4th Cir. 1922)

ABDO et al.

v.

TOWNSHEND et al.

In re TALIP et al.

No. 1956.

United States Court of Appeals, Fourth Circuit.

July 5, 1922

Page 477

E. L. Hogsett, of Omar, W. Va., for plaintiffs in error.

George S. Wallace, of Huntington, W. Va., for defendant in error.

Before KNAPP, WOODS, and WADDILL, Circuit Judges.

KNAPP, Circuit Judge.

Abdo and Abass, plaintiffs in error, herein called defendants, are partners in a wholesale business carried on at Logan, W. Va., under the name of Guyan Dry Goods Company. Talip and Homad, also partners, had a retail store at Omar, in that state. In the spring of 1919, Homad, because of ill health, went to Clarksdale,

Page 478

Miss., where he conducted a small business in peddlers' supplies. Talip was left in charge at Omar. Defendants sold goods to Talip and Homad, in 1919, both for the Omar store and for the business at Clarksdale. Some of the goods were later returned. November 20th Homad shipped back from Clarksdale goods invoiced at $769, and December 2d and 8th Talip shipped back from Omar goods invoiced at $1,759. December 24th the store and stock of goods at Omar were destroyed by fire. Not long afterwards Talip and Homad made a voluntary assignment for the benefit of their creditors to one Robert Bland, to whom they transferred such property as they had, including insurance policies aggregating $15,200, and the books and papers saved from the fire.

On February 26, 1920, an involuntary petition in bankruptcy was filed against them; later, May 12th, they were adjudicated bankrupts; in June the plaintiff, E. V. Townshend, was appointed trustee of their estate; and in July, by direction of the referee in bankruptcy, this suit was brought to recover the value of the goods which had been returned to defendants as an alleged preference under section 60, subsecs. 'a' and 'b,' of the Bankruptcy Act (Comp. St. Sec. 9644).

To maintain such a suit it is necessary to show, and the burden of proof is on the plaintiff, that the bankrupt, (1) while insolvent, (2) within four months of the date of filing the petition in bankruptcy, (3) made a transfer of property; (4) that the transferee was thereby enabled to obtain a greater percentage of his debt than other creditors of the same class; and (5) that the person receiving the transfer then had reasonable cause to believe that the enforcement of such transfer would effect a preference.

It would expand this opinion to undue length, and serve no useful purpose to recite the proofs of plaintiff on these questions of fact, and we therefore content ourselves with saying, after careful study of the record, that enough was shown in our judgment to amply sustain the verdict in his favor. Indeed, it is rather difficult to see...

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