Forman v. Jacobs, 2222.

• Decision Date: 13 June 1928
• Docket Number: No. 2222.,2222.
• Citation: 26 F.2d 764
• Parties: FORMAN v. JACOBS.
• Court: U.S. Court of Appeals — First Circuit

26 F.2d 764 (1928)

FORMAN v. JACOBS.

No. 2222.

Circuit Court of Appeals, First Circuit.

June 13, 1928.

William M. Silverman, of Boston, Mass. (Hermanson & Silverman, of Boston, Mass., on the brief), for appellant.

Joseph B. Jacobs and Jacobs & Jacobs, all of Boston, Mass., for appellee.

Before BINGHAM and JOHNSON, Circuit Judges, and HALE, District Judge.

BINGHAM, Circuit Judge.

March 12, 1927, Mary I. Davis was adjudged a bankrupt, and on that day the case was referred to Arthur Black, referee in bankruptcy.

May 23, 1927, Edward Forman filed a petition requesting that Philip W. Jacobs, the trustee in bankruptcy of Mary I. Davis, be ordered to turn over to him all sums of money received and to be received by him on certain specified accounts receivable alleged to have been assigned on or about February 26, 1927, by Mary I. Davis, doing business under the name of the Davis Dress Company, to the petitioner, in consideration of $2,000 in cash advanced by him to her.

May 23, 1927, the referee, after hearing, denied the petition.

June 6, 1927, Forman filed a petition asking for a review of the referee's order, and "that a transcript of the evidence with the referee's certificate be submitted to the judge."

October 19, 1927, the referee filed his certificate, in which, after setting out certain facts as found by him, he said: "The foregoing facts are sufficient to convince me that Forman was a party to a scheme to assist Davis in diverting his only remaining assets into the hands of friends, who were about to join hands with Davis in the launching of a new venture. I believe the whole scheme was conceived in fraud and that Forman realized it. I believe he is entitled to no relief."

The transcript of evidence, requested to be submitted to the judge with the referee's certificate, was not transferred with the certificate.

In the District Court the order of the referee denying the petition was affirmed, and this appeal was taken.

In the assignments of error Forman, the petitioner, complains that the court erred: (1) In that there were no findings of fact made by the District Judge upon which to base his confirmation of the referee's order; (2) in that the findings upon which the referee predicated and entered his order were contrary to the evidence, as shown by the record of the evidence herein; (3) in that his (the referee's) findings of fact, even if consistent with the evidence shown by the record of testimony herein, were such in law as to entitle your petitioner to recover; (4) in that there was no basis in law for the decision of the judge affirming the order of the referee; (5) in that the decision of the judge affirming the order denying the petition was contrary to the evidence, as shown by the record of the testimony herein, and contrary to law; and (6) in that the uncontradicted evidence discloses that the petitioner advanced certain money as a present consideration for the assignment of certain accounts, and that there was no evidence in the record of any knowledge on the part of your petitioner which would form the basis of fraud, upon which to sustain the findings of the referee.

The trustee in bankruptcy contends, although the ...