Brown v. Pelonsky
| Decision Date | 03 January 1912 |
| Citation | 96 N.E. 1102,210 Mass. 502 |
| Parties | BROWN v. PELONSKY. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Thos R. Bateman, for plaintiff.
Elisha Greenhood, for defendant.
The evidence was very meager, but in our opinion it presented a question for the jury. They could find that Saltman was insolvent on and before March 14, 1908, and remained so until he went into bankruptcy four months and three days later. From the very character of the transaction between the defendant and Saltman, the giving of the notes bearing the rate of interest and coming due at the dates fixed, and the arrangement that Saltman should still buy goods of the defendant and pay for them either in cash or by checks to be dated some days ahead and then to be collected in regular course in connection with what could be found to be the desperate condition of Saltman's finances, the jury could infer not only that Saltman intended to prefer and did prefer the defendant, but that the defendant had reasonable cause to believe and actually did believe that Saltman intended thereby to give him a preference. Three of these notes were paid as they respectively came due. Certainly the jury could find that these payments constituted preferences, that Saltman so intended, and that the defendant had reasonable cause to believe this. That entitled the plaintiff to go to the jury. Purinton v. Chamberlin, 131 Mass. 589 590; Killam v. Peirce, 153 Mass. 502, 27 N.E. 520; Chipman v. McClellan, 159 Mass. 363, 34 N.E. 379; Jaquith v. Winnisimmet National Bank, 182 Mass. 53 64 N.E. 723; Atherton v. Emerson, 199 Mass. 199 211, 85 N.E. 530; Ridge Avenue Bank v. Studheim, 145 F. 798, 76 C. C. A. 362.
The defendant's counsel has ingeniously argued that the payments made by Saltman for goods bought by him after the transaction of March could not be recovered as preferences because they were really cash payments and so understood by the parties. But this point is not open to him; for his only exception was to the refusal of the judge to rule that the evidence was insufficient to justify a verdict for the plaintiff, that is, a verdict for any amount.
Moreover the jury could find that these payments were made, not when the goods were bought and the checks dated ahead were given, but only when the days of their dates were respectively reached and they were paid. In that event, the purchases were not made for cash,...
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