In re Ambrose Matthews & Co.
| Decision Date | 21 January 1916 |
| Citation | 229 F. 309 |
| Parties | In re AMBROSE MATTHEWS & CO. |
| Court | U.S. District Court — District of New Jersey |
Howard A. Sperry, of New York City, for petitioning creditors.
Charles R. Snyder, of Atlantic Highlands, N.J. (S. C. Sugarman, of New York City, of counsel), for alleged bankrupt.
The acts of bankruptcy relied upon are that the alleged bankrupt made a general assignment for the benefit of its creditors and that it conveyed or transferred its property with intent to hinder, delay, or defraud them. The special master has found that each of these acts has been established. This finding is based upon the execution, by the alleged bankrupt of an instrument whereby it appointed two persons (hereinafter referred to as 'trustees') to wind up its affairs. It is necessary primarily, therefore, to construe this instrument and to ascertain its legal effect as respects the property of the alleged bankrupt. It does not contain any words of conveyance, assignment, or transfer. It merely appoints two persons as 'agents, attorneys, and trustees' for the stockholders, directors, and corporation 'for the purpose of winding up the affairs' of the corporation. It empowers them to collect the corporation's outstanding accounts, to pay its debts to prosecute and defend suits for and against it, to convey and dispose of its property, and after payment of its debts to divide its assets among the stockholders; also, to prepare the necessary papers for the dissolution of the corporation immediately after its accounts have been settled; and generally, it sought in terms to confer upon them all of the powers and to impose all of the liabilities of a board of directors in winding up the affairs of a corporation upon dissolution. It seems entirely clear that it conferred no title whatever to any of the corporation's property upon the trustees. Its effect was merely to clothe the trustees with certain powers regarding the disposition of the corporation's assets and the distribution of the same among its creditors and stockholders. Nor can I find that there was any intent on the part of the alleged bankrupt to confer title upon the trustees. Each of the latter were attorneys at law, and the purpose of the instrument was that they, who were presumably better qualified, rather than the directors, should wind up the affairs of the corporation. As the instrument brought about no change in the title to the property, either absolute or conditional, nothing was conveyed or transferred by it, and it could not hinder, delay, or defraud creditors, because any creditor could proceed to satisfy his claim from the corporation's property to the same extent as though the instrument did not exist.
The next question is whether it is a general assignment for the benefit of creditors, within the meaning of the Bankruptcy Act. It has been held quite uniformly that the general assignment there contemplated is to be taken in its generic sense, and embraces any conveyance, at common law or by statute, by which one intends to make an absolute and unconditional appropriation of all his property to pay his creditors, share and share alike. In re Thomlinson Co., 154 F. 834, 83 C.C.A. 550 (C.C.A. 8th Cir.), and cases there cited; Courtenay Mercantile Co. v. Finch et...
To continue reading
Request your trial
-
United States v. Middle States Oil Corporation
...to the common law as a general assignment. Vaccaro et al. v. Security Bank of Memphis et al. (C. C. A.) 103 F. 436. In re Ambrose Matthews & Co. (D. C.) 229 F. 309, a District Court case, affirmed by the Circuit Court of Appeals in 236 F. 539, it was held that to constitute an assignment fo......
-
Blair & Co., Inc. v. Foley
...is not an assignment for the benefit of creditors and thus does not constitute the fourth act of bankruptcy, In re Ambrose Matthews & Co., 229 F. 309 (D.N.J.), aff'd, 236 F. 539 (3 Cir. 1916), since nothing prevents a creditor from pursuing his ordinary remedies. If the grant of such a powe......
-
Thrift Packing Co. v. Food Machinery & Chemical Corp.
...benefit of its creditors within the meaning of section 3, sub. a(4) of the Act. In re Bartleson Co., D.C., 275 F. 390; In re Ambrose Mathews & Co., D.C., 229 F. 309, 310; see 41 Yale L. J. 1056. As stated in Collier's Bankruptcy Manual, § 3.04, pp. 85-86, "A general assignment by a corporat......
-
In re Carasaljo Hotel Co.
...in fraud of creditors unless title to the property is changed. The allegation of the lease of property is insufficient. In re Ambrose Matthews & Co. (D. C.) 229 F. 309. The fourth ground was the appointment of a temporary receiver under sections 65 and 66 of the Corporation Act of 1896 of N......