Kallman v. His Creditors

• Decision Date: 01 December 1887
• Docket Number: 9985
• Citation: 3 So. 382,39 La.Ann. 1089
• Court: Louisiana Supreme Court
• Parties: ALEXANDER KALLMAN v. HIS CREDITORS

3 So. 382

39 La.Ann. 1089

ALEXANDER KALLMAN v. HIS CREDITORS

No. 9985

Supreme Court of Louisiana

December 1, 1887

APPEAL from the Civil District Court, for the Parish of Orleans Voorhies, J.

Braughn Buck, Dinkelspiel & Hart, for Plaintiff and Appellant.

W. S Parkerson, for Opponent and Appellee.

OPINION

BERMUDEZ C. J.

The question presented is: Whether the insolvent has done any act which, under the law, debars him from the benefit accorded to honest debtors who become unable to honor their debts and obligations.

On the 5th of December, 1885, Kallman made a voluntary surrender of his property to his creditors, which was accepted by the court for their benefit.

On the 19th following, Kohlberg & Co., claiming to be his creditors, opposed his application for relief, charging that he had, within the three months next preceding said surrender, made a transfer of all his property to one Fitzner, which was fraudulent, and for the purpose and with the intention of giving him an unjust preference, to their injury.

Preliminary defenses having been overruled and issue being joined, the case was tried before a jury, which returned a verdict for plaintiff (opponents), and judgment was rendered annulling the decree accepting the cession, and denying to Kallman the benefit of the insolvent laws. From this judgment Kallman appeals.

The claim of the opponents as creditors is shown.

The partnership between Kallman & Fitzner, the latter in commendum, is established, and the dissolution of that partnership is likewise shown.

The opponents introduced in evidence an act of sale by Kallman to Fitzner, on November 11, 1885, of all his property, consisting of a cigar store and contents, his rights to a lease, a phaeton and harness and a horse, etc., for $ 3500, stated to have been paid and received. They have also offered in proof an act of rescission of this sale and retrocession of the property on hand and the proceeds of the sold portion. Kallman & Fitzner were also heard as witnesses, etc.

The acts in question were introduced by the opponents without any restriction as to the purpose for which they were offered, i. e., without any qualification of object.

As found incorporated in section 1802 et seq. of the Revised Statutes, the law enumerates the cases in which an insolvent may be charged with fraud and accused of giving an undue preference to one or more of his creditors, to the injury of the complaining parties, and provides that, when the jury declare in their verdict, on the accusation, that he has been guilty of fraud, he shall forever be deprived of the laws passed in favor of insolvent debtors, in this State, and sentenced to imprisonment for a term not exceeding three years and, if it shall appear that the debtor has only been guilty of conferring an unjust preference, or advantage, upon another bona fide creditor, such defendant may be relieved from imprisonment by paying the complaining creditor, or repairing the injury or fraud complained of, etc.

The act of sale of Kallman to Fitzner, as well as the retrocession by the latter to the former, were introduced in evidence by the opponents, as said, without any qualification.

It is a general principle of the law of evidence, long recognized and so firmly settled, as to be an axiom, that where either party litigant relies on the admissions, or declarations of his adversary to make out a case against him, the whole of those admissions must be taken together as a unit, and...