Abdo v. Townshend

Decision Date05 July 1922
Docket Number1956.
Citation282 F. 476
PartiesABDO et al. v. TOWNSHEND et al. In re TALIP et al.
CourtU.S. Court of Appeals — Fourth Circuit

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 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 how the jury could have reached a different conclusion. We turn, then, to consider briefly the other assignments of error.

1. The action of plaintiff is assumpsit; the declaration containing the common counts, with a bill of particulars, and a special count. The latter includes the following:

'That heretofore, to wit, in the months of November and December, 1919, and within four months preceding the filing of the petition in bankruptcy against the said John Talip and Harry Homad, the said bankrupts, while insolvent, transferred personal property to the amount of $4,112.83 to the defendants, Charles Abdo and Mike Abass, partners trading and doing business as the Guyan Dry Goods Company, who were then and there creditors of the said John Talip and Harry Homad, and the effect of said transfer was to and did enable the said Charles Abdo and Mike Abass to obtain a greater percentage of their debts against the said John Talip and Harry Homad, bankrupts, than other creditors of the same class, and that the said Charles Abdo and Mike Abass then and there had reasonable cause to believe that the said transfer would effect such preference.'

To this declaration there was a demurrer, on the ground, in substance, that it does not set forth such facts as justify the conclusion that the property transferred to defendants effected a preference: 'Because it is not alleged (a) what the personal property alleged to have been turned over was or its value; (b) what the amount of defendants' debts against John Talip and Harry Homad are; (c) that there are other creditors of the same or any other class and the amounts of their debts; (d) what the assets and liabilities of the said bankrupts are.'

The demurrer further charges that:

'Plaintiff's action, if any he has, is detinue to recover the specific property, or in the alternative its value, and not assumpsit.'

At the argument on this demurrer, as the record indicates, the court below allowed the declaration to be amended by adding thereto a paragraph as follows:

'That at the time of the filing of the petition in involuntary bankruptcy against the said Talip and Homad they were indebted to various creditors of the same class as the defendants in a large sum, to wit, the sum of $45,000, and the assets of the said Talip and Homad at the time of the filing of said petition were less than the sum of $1,000.'

It is not easy for one unfamiliar with the refinements of commonlaw pleading to understand why this declaration, as amended, if not before, should not be held sufficient. It seems to include all the elements of a cause of action under section 60b of the act. True, it does not show what kind of property was returned to defendants, or the aggregate liabilities of the bankrupts, or the value of their assets; but those particulars relate, not to the fact that a...

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13 cases
  • London Guarantee & Accident Co. v. Woelfle
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • April 20, 1936
    ...v. United States (C.C.A.5) 298 F. 911; Selover v. Bryant, 54 Minn. 434, 56 N.W. 58, 21 L.R.A. 418, 40 Am.St.Rep. 349; Abdo et al. v. Townshend et al. (C.C.A.4) 282 F. 476. A trial court, for the purpose of expediting the trial of a case, eliciting the truth, and furthering justice, has a wi......
  • State v. Wood
    • United States
    • Missouri Supreme Court
    • February 10, 1947
    ... ... to rights of a defendant. Jones on Evidence (3 Ed.) 816; ... Offerman v. Union Depot, 125 Mo. 408; Abdo v ... Townsend, 282 F. 476; State v. Stevens, 29 ... S.W.2d 113, 325 Mo. 434. (5) It was error for the prosecutor ... to ask defendant questions ... ...
  • Moran v. Pittsburgh-Des Moines Steel Co., Civ. No. 4761.
    • United States
    • U.S. District Court — Eastern District of Pennsylvania
    • July 29, 1949
    ...Co. et al. v. Griscom-Russell Co., 3 Cir., 278 F. 703, certiorari denied 259 U.S. 580, 42 S.Ct. 464, 66 L.Ed. 1073; Abdo et al. v. Townshend et al., 4 Cir., 282 F. 476. If the party calling the witness was not to be bound by the testimony offered where there has been no contradiction or imp......
  • In re Candor Diamond Corp.
    • United States
    • U.S. Bankruptcy Court — Southern District of New York
    • December 11, 1986
    ...statements, although they may not be the best evidence, have been admitted by courts as evidence of solvency. See Abdo v. Townshend, 282 F. 476 (4th Cir.1922) (holding admissible the unaudited financial statement and stating that "the statement was not complete or accurate, but what it show......
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