Levy v. Rendle Contracting & Dock Bldg. Co.
| Decision Date | 01 March 1935 |
| Docket Number | No. 6054.,6054. |
| Parties | LEVY v. RENDLE CONTRACTING & DOCK BLDG. CO. |
| Court | U.S. District Court — District of Massachusetts |
Harold Horvitz and Guterman & Guterman, all of Boston, Mass., for plaintiff.
Geo. L. Dillaway, of Boston, Mass., for defendant.
The above-entitled action at law is brought by a trustee in bankruptcy to recover a preference. The case was tried without jury upon an agreed statement of facts, from which it appears that the bankrupt, within four months prior to bankruptcy, transferred certain personal property, including three boats, to the defendant, one of bankrupt's creditors.
According to the records of the bankrupt corporation, it had received an offer from the defendant to purchase the three boats for a sum of $5,000, and, upon the transfer being completed, the defendant credited the bankrupt's account with $5,100. Shortly after adjudication the defendant's attorney wrote to the receiver of the bankrupt estate offering to surrender the property. The receiver thereupon petitioned the referee for instructions respecting his duties in the premises. The referee authorized the receiver to disclaim title to the property and to conserve the rights of a trustee to proceed against the defendant for the value of the property or the price paid therefor. The parties have stipulated that the value of the property transferred at the time of transfer was $2,000. No question is raised respecting the right of the trustee to avoid the transfer under section 60b of the Bankruptcy Act (11 USCA § 96 (b) as a preference. Although the stipulation recited that "the only question for consideration of the court is the amount of money the plaintiff is entitled to recover," defendant's attorney in his argument questioned the plaintiff's right to a money judgment in view of the offer to return the boats. This contention probably could not prevail had there been no stipulation. The law seems to be settled that the trustee has the right to elect whether he will sue for the property or for its value. Remington on Bankruptcy, §§ 2230 and 2250; Collier on Bankruptcy (13th Ed.) p. 1330.
My attention has been directed to no case which militates against the text of these works.
National City Bank of New York v. Hotchkiss, Trustee, 231 U. S. 50, 34 S. Ct. 20, 58 L. Ed. 115, cited by the defendant, is not opposed. There the trustee elected to proceed in equity to recover securities in specie. The trustee was held to this election, notwithstanding that the value of the securities had depreciated.
Proceeding to the only question open on the stipulation, it is the plaintiff's contention that the transfer is to be treated as if the defendant had paid to the bankrupt $5,100 and the bankrupt...
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