In re Willfuehr
| Decision Date | 08 June 1923 |
| Citation | 292 F. 387 |
| Parties | In re WILLFUEHR et al. |
| Court | U.S. District Court — Southern District of New York |
Louis H. Rowe, of New York City (S. H. Molleson, of New York City of counsel), for trustee.
Arthur Carter Hume, of New York City, for claimant.
This is an application by Frank T. Neely for a review of the order of the referee in bankruptcy denying the petitioner's claim. The petitioner's claim is based upon an alleged contract entered into between the bankrupt firm and the claimant, on or about November, 1920, wherein it is contended that the bankrupts offered to purchase from the claimant and the claimant agreed to deliver 36,000 tons of coal. The details of the contract, as to prices and conditions, are said to be contained in two letters written by the bankrupts to claimant, offering to purchase the coal, and the written acceptances of the claimant, contained in letters from him to the bankrupts.
It appears from the summary of the evidence certified to this court that one of the bankrupts, Codina, after a preliminary conversation with Neely, the claimant, dictated two letters on November 4, 1920, and, after the same had been typewritten, directed one Antone, an associate of Codina and an employee of the firm, to sign and deliver to Mr. Neely the letters in question. The letters of the claimant followed. These facts seem to be undisputed. Thereafter, at the office of the bankrupts, these letters of the bankrupts, on the request of Codina, were handed to him by Neely, ostensibly for examination. Codina left the room, taking the papers with him, and disappeared. Neely, after waiting for some time for his return, demanded that duplicates of these letters be furnished to him, which was promised; but the duplicates were not furnished and the originals have never been restored to the claimant. The witness Antone testified before the referee in substance, that, in a subsequent conversation with Codina Codina said he had 'lost' the papers. The witness Herman Willfuehr testified that Codina told him: 'I took care of the papers, and Neely won't bother us any more.'
At the hearings before the referee, the circumstances of the dictation, writing, and signing of the letters in question were testified to in detail. The referee, on objection by the attorneys for the trustee, refused to permit secondary evidence to be introduced showing the contents of the missing letters, and on motion by the attorney for the trustee struck from the record letters answering the bankrupts' letters written by the claimant, accepting the offer to purchase the coal and confirming the alleged contract. These letters of acceptance had been previously admitted, apparently on the theory that the letters of the bankrupts of November 4, 1920 to which these letters were responsive, would be produced. The claimant, however, was unable to produce the missing letters for the reasons stated above.
The exclusion of secondary evidence as to the contents of missing letters,...
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Sellmayer Packing Co. v. Commissioner of Int. Rev.
...Co. v. Commissioner of Internal Revenue, 3 Cir., 70 F.2d 446; Guilford Granite Co. v. Harrison Granite Co., 23 App.D.C. 1; In re Willfuehr et al., S.D.N.Y., 292 F. 387. It is conceded also that the evidence on the point presents an issue of fact and that the finding of the Tax Court thereon......