In re Hildebrant

• Decision Date: 18 March 1903
• Parties: In re HILDEBRANT et al.
• Court: U.S. District Court — Northern District of New York

120 F. 992

In re HILDEBRANT et al.

United States District Court, N.D. New York.

March 18, 1903

Chester G. Wager, for trustee.

Thomas F. Galvin, for petitioner.

RAY District Judge.

Prior to the filing of the petition in bankruptcy herein, and between the 3d day of October, 1900, and the 31st day of January, 1901, the petitioner, the Andrew M. Church Company sold and delivered to the said firm of Hildebrant & Buchanan certain goods and merchandise, for which it made and verified its claim against the bankrupt estate in the words and figures following:

'Troy, N.Y., . . . 189-- .

'Hildebrant & Buchanan in acc't with the Andrew M Church Co.

1900
Oct	3 Mdse.................	$ 178 37
	12 " ......................	68 81
	15 " ......................	46 20
	16 " .....................	115 71
	18 " ......................	30 68
	8 Cash Ex. p. chg............	30
Nov.	3 .......................	103 30
	7 .........................	9 26
	16 ........................	76 59
	17 ........................	20 52
	22 .......................	165 61
Dec.	7 .........................	2 54
	8 .........................	1 75
	8 ........................	14 98
Jan.	31 .........................	7 75
		--------
		$842 37

'In the District Court of the United States for the Northern District of New York.

'In the Matter of Thomas L. Hildebrant & Edward C. Buchanan as Individuals & as a Copartnership under the Firm Name of Hildebrant & Buchanan, Bankrupts.

'In Bankruptcy. No. 478.

'At the city of Troy, in said district of New York, on the 6th day of May, 1901, came Andrew M. Church, of Troy, in the county of Rensselaer and state of New York, and made oath and says that he is treasurer of the Andrew M. Church Company, a corporation incorporated by and under the laws of the state of New York, and carrying on business at Troy, in the county of Rensselaer and state of New York, and that he is duly authorized to make this proof, and says that the said Hildebrant and Buchanan, the persons by whom a petition for adjudication of bankruptcy has been filed, were at and before the filing of said petition, and still are, justly and truly indebted to said corporation in the sum of 842 37/100 dollars; that the consideration of said debt is as follows: Goods, wares, and merchandise, consisting of cotton cloth, etc., sold and delivered to said Hildebrant and Buchanan by said company at the different times mentioned in the annexed statement; that no part of said debt has been paid; that there are no offsets or counterclaims to the same; and that said corporation has not, nor has any person by its order, or to the knowledge or belief of said deponent, for its use, had or received any manner of security for said debt whatever. A. M. Church,

'Treasurer of Said Corporation.

'Subscribed and sworn to before me this 6th day of May, 1901.

'Thomas F. Galvin, Notary Public Rens. Co.

'Certificate filed in Albany Co.'

This claim was presented to and filed with the trustee on the 6th day of May, 1901, at 3 o'clock p.m. The referee finds, and there is evidence to support the finding, that the total value of the goods sold aggregated in value over $1,000, and that November 28, 1900, said Hildebrant & Buchanan paid said petitioner the sum of $150.42 on account of such goods. The petitioner claims this was payment for a specific item of sales made by the petitioner to Hildebrant & Buchanan, and in no way entered into the general account, and was not a payment on account. The evidence fails to support this claim. in fact, it shows that the payment must have been on account. The referee also finds:

'Twelfth. That prior to the purchase of said goods by said bankrupts from the A.M. Church Company, and as and in account thereto, representations were made in regard to the liabilities and assets of said firm by the members thereof, or one of them, which, if they were not intentionally false or fraudulent, were untrue, and were equally calculated to mislead the petitioner, and to induce the sales made to said firm by the petitioner, as if they had been so, and that said representations did induce the petitioner to make the sales set forth in said proof of claim to the said bankrupts; that some of said representations were made directly to said A.M. Church Company, and others to R.G. Dun & Co., a mercantile agency, by which they were reported to said A.M. Church Company prior to said sales being made.'

'Ninth. That if any fraudulent statements were made by said Hildebrant & Buchanan, or either of them, or any fraud practiced that induced the A.M. Church Company, the petitioner, to part with its goods to the said Hildebrant & Buchanan, the facts in regard to such fraud or fraudulent statements were fully known to said A.M. Church Company on May 6, 1901, the time when it filed the claim against the bankrupt's estate as stated above.'

The referee further finds that at the time of the adjudication the bankrupts had on hand at their factory cotton cloth, unused, of the value of about $182.75, which passed into the hands of the assignee, but also finds that the whole thereof did not come from the petitioner. He does not find or state either the amount or value of the cloth on hand that was purchased of the A.M. Church Company. The referee does not specially find, but it was admitted on the hearing, and is a fact, that on the 6th day of May, 1901, the petitioner, the Andrew M. Church Company, made and served a written demand and claim for the return of certain of the property sold and delivered to the bankrupts on both the trustee and referee in bankruptcy. Such demand was as follows: 'In the District Court of the United States for the Northern District of New York.

'In the...