Boswell Nat. Bank v. Simmons

• Decision Date: 27 October 1911
• Docket Number: 3,514.
• Citation: 190 F. 735
• Parties: BOSWELL NAT. BANK v. SIMMONS.
• Court: U.S. Court of Appeals — Eighth Circuit

190 F. 735

BOSWELL NAT. BANK v. SIMMONS.

No. 3,514.

United States Court of Appeals, Eighth Circuit.

October 27, 1911

William T. Hutchings and William P. Z. German, for appellant.

A. C. Markley (C. B. Stuart and J. H. Gordon, on the brief), for appellee.

Before ADAMS and SMITH, Circuit Judges, and REED, District Judge.

ADAMS, Circuit Judge.

This suit was instituted by the trustee in bankruptcy of the Boswell Mercantile Company to recover an alleged voidable preference, and also to declare a trust in certain real estate standing in the name of the president of the bank in favor of the trustee in bankruptcy. The bankrupt company paid to the bank, less than four months prior to the filing of the petition in bankruptcy, the sum of $4,471.67 in satisfaction of a then existing debt due the bank. If the mercantile company was then insolvent, and if the bank then had reasonable cause to believe its debtor intended to give it a preference, and if the payment under such circumstances had the effect to enable the bank to obtain a greater percentage of its debt than any other creditor of the same class, the payment constituted a voidable preference, and the trustee was entitled to recover it from the bank.

Upon issue joined the case was referred to a special master, to take the evidence and report it, with his findings of fact, to the court for its consideration and judgment. The master found the facts which we have just specified, entitling the trustee to recover, and the court below, on exceptions duly taken after a full hearing, approved the findings of the master and entered a decree in favor of the trustee for both the money and the real estate. When the trial court has considered conflicting evidence and made its findings of fact thereon, they must be taken to be presumptively correct (Hussey v. Richardson-Roberts Dry Goods Co., 78 C.C.A. 370, 148 F. 598; Coder v. Arts, 152 F. 943, 82 C.C.A. 91, 15 L.R.A. (N.S.) 372; Id., 213 U.S. 223, 29 Sup.Ct. 436, 53 L.Ed. 772); and this presumption is materially strengthened by the master's prior findings to the same effect. Concluding, after a careful consideration of the proof in this case, that there was substantial evidence to sustain the findings below, and discovering no obvious error of law or serious mistake of fact in such findings, the presumption of their correctness must be indulged.

The decree is affirmed.