In re Hamilton

• Decision Date: 28 January 1895
• Parties: In re HAMILTON et al. v. LADD et al. AVERY et al.
• Court: Oregon Supreme Court

38 P. 1088

26 Or. 579

In re HAMILTON et al.

AVERY et al. v. LADD et al.

Supreme Court of Oregon

January 28, 1895

Appeal from circuit court, Benton county; J.C. Fullerton, Judge.

Action by W.M. Ladd and others against J.M. Applewhite and others to prevent the allowance of certain claims as set-off against their several debts due Hamilton, Job & Co. before assignment. From a judgment for plaintiffs, defendants appeal. Affirmed.

This is an appeal from a judgment sustaining objections to and rejecting the several offsets claimed by the appellants against their several debts due the firm of Hamilton, Job &amp Co. The cause was tried upon an agreed statement of facts from which it appears that up to and for some time prior to June 10, 1893, B.R. Job and Zephin Job were partners, engaged in general banking business at Corvallis, Or., under the firm name of Hamilton, Job & Co. That on said day they failed to open their bank for business, and posted a notice on the door thereof to the effect that, owing to the withdrawal of deposits, they were compelled to suspend payment; and at the same time B.R. Job commenced a suit against Zephin Job for the dissolution of said partnership, alleging in his complaint the suspension of their bank, and their inability to continue the business, and praying the appointment of a receiver to take charge of their assets, collect the debts due the firm, apply the proceeds to the payment of their liabilities, wind up their affairs, and divide the surplus if any, among the partners as their respective interests might appear upon an accounting; whereupon the court on said day made an order appointing J.R. Bryson receiver, and instructing him to proceed as prayed for in the complaint and said officer, having duly qualified, entered upon the discharge of his duties. That after the appointment of the receiver, the property and assets of said firm having been attached in an action brought by the State Agricultural College to secure the payment of $17,664.74 due it, the said B.R. and Zephin Job, as such partners, on the 19th of said month, at the request of a majority of their creditors, made a general assignment to said J.R. Bryson, who accepted the trust, and duly qualified as assignee. That three days thereafter the court made an order directing said Bryson to proceed under the assignment, instead of the receivership, in the administration of the said estate, and to surrender, as such receiver, to himself, as assignee, all the property and assets of said firm in his possession, and that further proceedings under the receivership in respect to the partnership assets be suspended until a final settlement by the assignee or the further order of the court. That, upon the usual notice to creditors being given by the assignee, numerous claims against said estate were presented for allowance, and, among others, the following were sought to be offset against their respective debts, to wit: J.M. Applewhite, being indebted in the sum of $87.15, tendered the check of J.C. Applewhite, drawn upon said firm in his favor, June 10, 1893, for $100; P. Avery, being indebted in the sum of $150, offered the check of the Benton County Flouring Mills Company, drawn the same day upon said firm in his favor, for $149.30; John Smith, being indebted in the sum of $2,000, presented a certificate of deposit issued by said firm to said Benton County Flouring Mills Company for $4,000, and duly assigned to him June 15th, and also a draft issued by said firm upon Messrs. Ladd & Tilton, bankers at Portland, Or., for $44.90, and duly assigned to him after the appointment of said receiver. That the said checks issued to J.M. Applewhite and P. Avery were given to and received by them subsequent to the closing of said bank, with knowledge thereof, and could not, therefore, have been presented for payment prior thereto. That the estates of Hamilton, Job & Co., and of said B.R. Job and Zephin Job, at all times since June 10, 1893, have been and are wholly insufficient to pay the debts of said partnership. That William M. Ladd, Charles E. Ladd, and John Wesley Ladd, trustees under the last will and testament of W.S. Ladd, deceased, being creditors of said insolvent estate, and having presented their claims for allowance to the assignee within the time required by law, filed objections to the allowance of the foregoing claims of set-off, and the court at the hearing thereof sustained said objections, and rendered judgment rejecting the several claims so objected to, from which judgment all the claimants appeal.

J.W. Whalley and John Kelsay, for appellants.

J.C. Flanders, for respondents.

MOORE J. (after stating the facts).

The record discloses that J.R. Bryson was appointed receiver at about 3 o'clock in the afternoon of June 10 1893, and that P. Avery received his check, drawn that day upon Hamilton, Job & Co., before that hour, but that he accepted it with knowledge that their bank had suspended payment; and the...