In re Adler
| Decision Date | 05 March 1907 |
| Docket Number | 165. |
| Citation | 152 F. 422 |
| Parties | In re ADLER. |
| Court | U.S. Court of Appeals — Second Circuit |
H. M Johnsson and Black, Olcott, Gruber & Bonynge, for petitioner.
I. L Ernst and Olcott, Gruber, Bonynge & McManus, for respondent.
Before WALLACE, LACOMBE, and COXE, Circuit Judges.
The character of the action in the state court must be determined by the pleadings. The complaint alleges: That in February 1904, the plaintiff, the Manhattan Oil Company, entered into an agreement with the defendant, the bankrupt, whereby he became the factor and agent of the plaintiff for the sale of its oil to the Johns-Manville Company. That the bills were to be made out in the name of the defendant as seller, but upon the receipt of payment he should forthwith pay over to the plaintiff the identical sums received by him, whereupon, and not prior thereto, the plaintiff agreed to pay his commissions as factor and agent for the consummation of said sales. That the Manville Company under this agreement has paid the defendant $2,780.19, which he has misapplied to his own use to the damage of the plaintiff in the said amount.
The answer admits every allegation of the complaint, except that the defendant received $2,780.19 from the Manville Company, which allegation he denies. For a separate defense he alleges the acceptance of three promissory notes in full payment and satisfaction of the claim for the alleged conversion. By stipulation between the parties, printed in petitioner's brief, no contention based on this defense is to be considered on the argument in this court.
It seems to be conceded on both sides that the only question to be determined is whether or not the indebtedness alleged in the complaint was created by the bankrupt's fraud, embezzlement, misappropriation or defalcation, while acting in a fiduciary capacity. It is well settled that a factor or agent who sells the goods of his principal and fails to pay over the money collected is not guilty of misappropriation, while acting in a fiduciary capacity, within the meaning of the bankruptcy act. Chapman v. Forsyth, 2 How. 202, 11 L.Ed. 236; Crawford v. Burke, 195 U.S. 176, 25 Sup.Ct. 9, 49 L.Ed. 147; Barrett v. Prince, 143 F. 302, 74 C.C.A. 440.
It is argued by the petitioner that the bankrupt was the trustee of an express trust by which he agreed to receive the checks paid for the oil company's property as custodian merely and to deliver them to the company intact, except so far as his indorsement...
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First Nat. Bank v. Haymes
...claim is determined from the plaintiff's pleading, to the exclusion of what the bankrupt may say about the claim in affidavits. In re Adler, 2 Cir., 152 F. 422; In re Northrup, D.C.N.Y., 265 F. 420; In re Gelson, D.C.N.Y., 12 F.Supp. 924, 925. Here the complaint marks the claim unmistakably......
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Fid. & Cas. Co. Of N.Y. v. Colombosky.
...of the conclusion reached in these cases two decisions of the United States Circuit Court of Appeals for the Second Circuit, In re Adler, 152 F. 422, 81 C.C.A. 564; In re Harber, 9 F.2d 551. These were both cases in which a stay of proceedings in an action against the bankrupt was sought un......
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In re Turner
...meant "express" trust, and discharged any debt that did not clearly involve a traditional voluntary "express" trust. See In re Adler, 152 F. 422 (2d Circ.1907), discharging factor; In re Harber, 9 F.2d 551 (2d Circ.1925), discharging corporate officer; In re Thornton, 544 F.2d 1005 (9th Cir......
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In re Nored, Bankruptcy No. 01-16459.
...S.W.2d 46 (1970). 13. See In Re Maynard, 153 B.R. 933 (Bankr.M.D.Fla.1993); In re Danahy, 45 F.Supp. 758 (W.D.N.Y.1942). 14. In re Adler, 152 F. 422 (2d Cir.1907). 15. In re Spector, 26 C.B.C.2d 161, 133 B.R. 733, (Bankr.E.D.Pa.1991); In re Tocci, 9 C.B.C.2d 636, 34 B.R. 66 (Bankr.S.D.Fla.1......