Donohue v. Dykstra

• Decision Date: 09 January 1918
• Docket Number: 5942.
• Citation: 247 F. 593
• Parties: DONOHUE v. DYKSTRA et al.
• Court: U.S. District Court — Eastern District of Michigan

247 F. 593

DONOHUE v. DYKSTRA et al.

No. 5942.

United States District Court, E.D. Michigan, Southern Division.

January 9, 1918

Max Kahn, of Detroit, Mich., for plaintiff.

Clarence E. Wilcox, of Detroit, Mich., for defendants.

TUTTLEDistrict Judge.

This is a motion for a new trial on the ground that the verdict of the jury was so contrary to the evidence that it should be set aside and either a judgment non obstante veredicto entered or a new trial granted.

This was an action brought by the plaintiff, as trustee of the estate of the American Silica Company, a Michigan corporation, bankrupt, against the defendant partnership, J W. Dykstra & Co., to recover from the latter an alleged preference given by said bankrupt to said defendant within four months prior to the filing of the petition in bankruptcy against said corporation; said alleged preference consisting of an assignment of certain book accounts as security for the payment of a pre-existing indebtedness due and owing by said corporation to said partnership.The court submitted to the jury as questions of fact for its determination the material questions in such a case, namely: First, whether at the time of the transfer alleged to constitute a preference said bankrupt was insolvent; second, whether such transfer operated as a preference; and, third, whether the defendant then had reasonable cause to believe that such transfer would effect a preference.It is not disputed that these were the material issues involved, as this action was based upon action 60b of the Bankruptcy Act(ActJuly 1, 1898, c. 541, 30 Stat. 562 (Comp. St. 1916, Sec 9644)), providing, among other things, as follows:

'If a bankrupt shall have * * * made a transfer of any of his property, and if, at the time of the transfer, * * * and being within four months before the filing of the petition in bankruptcy, * * * the bankrupt be insolvent and the * * * transfer then operate as a preference, and the person receiving it or to be benefited thereby, or his agent acting therein, shall then have reasonable cause to believe that the enforcement of such * * * transfer would effect a preference, it shall be voidable by the trustee and he may recover the property or its value from such person.'

Counsel for plaintiff took no exceptions to the charge of the court submitting such issues to the jury, although given the opportunity so to do at the conclusion of the charge.He now, however, contends that the evidence on these material issues was insufficient to sustain the verdict for the defendant, which verdict for that reason should be set aside.The sole question raised or argued is whether there was sufficient conflict in the evidence to support the verdict of the jury rendered on such evidence.

As plaintiff did not request the court to instruct the jury to find in his favor on any of the issues submitted, and as he failed to take any exceptions to such charge, it would seem that he is not now in a position to make the contention thus urged.Pennsylvania Casualty Co. v. Whiteway,210 F. 782, 127 C.C.A. 332.

Aside however, from this consideration, I am satisfied, upon a careful examination and consideration of the record and briefs of counsel, that the charge was as favorable to plaintiff as the circumstances warranted, and that there was sufficient evidence to sustain the verdict.It is, of course, well settled that if there is any real...