Clark v. Sawyer

• Decision Date: 26 February 1890
• Citation: 151 Mass. 64,23 N.E. 726
• Parties: CLARK v. SAWYER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

151 Mass. 64

23 N.E. 726

CLARK v. SAWYER.

Supreme Judicial Court of Massachusetts, Hampshire.

February 26, 1890

COUNSEL

Hammond & Field, for plaintiff.

Bond & Mason, for defendant.

OPINION

HOLMES, J.

This is an action brought by the assignee in insolvency of Webster & King to recover the value of property transferred by them to the defendants shortly before they were put into insolvency. The main controversy concerned two bales of silk delivered to the defendant on January 14, 1888. Before that time, Webster & King had asked the defendant to accept a voluntary assignment for the benefit of creditors; and on December 24, 1887, they had made an assignment to him, and had put it on record. According to the defendant's testimony, however, he had not accepted it on January 14th, and on that day Webster & King borrowed of him $1,158.18 to pay their workmen for work done in November and December, 1887, giving the silk as security. The business of their factory stopped on December 24, 1887, and was not resumed, except for five days beginning January 2, 1888. The court allowed the jury to find for the defendant, if he advanced the money and received the silk under a special assignment, before he had consented to the above-mentioned general assignment, as one transaction in good faith, without intent to defraud, or to aid in any fraud. The plaintiff asked for a ruling that if Webster & King were insolvent, and the defendant had reasonable cause to believe them so, he could have no lien as against the plaintiff. This was refused.

We see no error in the instruction or the refusal. The argument for the plaintiff assumes that the defendant not only had reasonable cause to believe that Webster & King were insolvent, but knew that they had given up the hope of going on with their business. There was no such qualification in the instruction asked; and we cannot say, as matter of law, that the defendant must be taken to have known that fact, if it was a fact. There is no doubt that the defendant had a right to make an advance bona fide for the purpose of helping the insolvents to get upon their legs, and go on; and, even if this was not expected, but it was intended to save costs and expense, by preventing suits, which were threatened in this case, and the payments contemplated were not unlawful preferences, but lawful payments, as here, we see no reason why the advance should not stand, as well as one made for the purposes of completing a contract. The fact that one workman gained an advantage of a few dollars does not change the case, because it does not appear that the defendant knew that any workman had a claim for more than $100. See Carnes v. White, 15 Gray, 378; James v. Newton, 142 Mass. 366, 379, 8 N.E. 122; Tiffany v. Boatman's Inst., 18 Wall. 375.

One other question is raised by the bill of exceptions. Sooner or later, the defendant did accept the general assignment to him, and collected some money due Webster & King. He claimed the right to deduct from what he received a sum paid by him for legal services while acting...