Gamble v. Mathias, 6704.
| Decision Date | 02 December 1932 |
| Docket Number | No. 6704.,6704. |
| Citation | 61 F.2d 911 |
| Parties | GAMBLE v. MATHIAS et al. |
| Court | U.S. Court of Appeals — Fifth Circuit |
John W. Penn, of El Paso, Tex., for appellant.
Allen R. Grambling, Thornton Hardie, E. F. Cameron, and Harold Potash, all of El Paso, Tex., for appellees.
Before BRYAN, FOSTER, and HUTCHESON, Circuit Judges.
Appellant, plaintiff below, brought his action to set aside as preferences, and to recover of appellees, the sums collected within four months on assignments of fire insurance policies made by the bankrupt more than four months prior to bankruptcy.
The petition alleged in substance that on April 11, 1931, the bankrupt, being then the owner of a business in El Paso, and having certain policies of fire insurance upon his stock and business, sustained a loss by fire which was adjusted at something over $10,000. That on April 23, 1931, the bankrupt being then indebted to appellees, did by written indorsement on the back of the policies of insurance, as follows: "For value received, I hereby transfer, assign and set over unto and assigns, all title and interest in this policy and all advantages to be derived therefrom" assign them to appellees who delivered them to the agents of the insurance companies for collection.
That on May 11, June 5, and June 23, respectively, checks or drafts were received from the insurance companies and delivered to and taken possession of by appellees. That adjudication in bankruptcy as of September 22d followed. It was further alleged that at the date of the assignments and of the delivery to and receipt by defendants of the sums sued for the bankrupt was insolvent; that the appellees knew or had reasonable cause to believe that he was; and that the transfers would effect a preference. That at the time the assignments were executed it was the custom to issue drafts drawn by insurance companies in payment of losses, the policies on which had been assigned, in the joint names of assured and assignee, and to require their joint indorsement. That therefore, because thereof, it could not be said that the assignment of the policies was consummated until the joint indorsement of the checks or drafts.
Defendants demurred to this petition, that since it showed on its face that appellees had acquired title to the policies more than four months before bankruptcy, it made no case of preference. The demurrer sustained, plaintiff declined to amend, and from the final judgment that plaintiff take nothing, this appeal is prosecuted.
The trustee sought below, and here seeks, to make...
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