Marden v. Sugden

• Decision Date: 01 April 1902
• Citation: 52 A. 74,71 N.H. 274
• Parties: MARDEN v. SUGDEN et al. SUGDEN et al. v. HALL. SAME v. LANGDON. SAME v. NICKERSON.
• Court: New Hampshire Supreme Court

52 A. 74

71 N.H. 274

MARDEN

v. SUGDEN et al.

SUGDEN et al.

v. HALL.

SAME

v. LANGDON.

SAME

v. NICKERSON.

Supreme Court of New Hampshire. Rockingham.

April 1, 1902.

Exceptions from Rockingham county.

Bill in equity by Herbert A. Marden, trustee in bankruptcy of George W. Seward, against John H. Sugden and others to set aside certain orders as preferences, and suits at law by John H. Sugden against Clifton E. Hall and others as acceptors of such orders. Judgment for the trustee in the bill in equity, and for the acceptors in the suits at law, and cases transferred from the superior court on Sugden's exception. Exceptions overruled.

Seward did business as a contractor and builder, under the name of Cowan & Seward and George W. Seward & Co., and the orders in question were signed, "Everett Cowan and George W. Seward." Cowan had nothing to do with the business; and the Sugdens knew the fact, and did not rely on Cowan when they furnished the materials in payment for which the orders were given. Neither Cowan nor the firm of Cowan & Seward has been decreed bankrupt. The Sugdens knew that Seward was insolvent when the orders were given, and had reasonable cause to believe that the purpose of the orders was to give them a preference over other creditors. The court found that the orders in question were preferences, within the meaning of the bankruptcy act, and ordered judgment for the defendants in the suits at law, and for the plaintiff in the bill in equity, and the Sugdens excepted. While the orders were accepted unconditionally, it was understood between the Sugdens and the acceptors that they were only to be paid out of money which might thereafter become due. Subject to the Sugdens' exception, the defendants in the suits at law were permitted to show by parol that they accepted the orders unconditionally by mistake; and Marden was permitted to show in the same way that Cowan was not in fact a partner with Seward, and had no interest in the contracts with Hall, Langdon, and Nickerson.

Samuel W. Emery, for Sugden and others. Edward H. Adams, for Hall and Nickerson. Page & Bartlett, for Langdon and Cowan.

REMICK, J. "If a bankrupt shall have given a preference within four months before the filing of a petition, * * * and the person receiving it or to be benefited thereby * * * shall have had reasonable cause to believe that it was intended thereby to give a preference, it shall be voidable by the trustee, and he may recover the property or its value from such person." Bankr. Act 1898, § 60b. "A person shall be deemed to have given a preference if, being Insolvent, he has * * * made a transfer of any of his property, and the effect of the enforcement of such * * * transfer will be to enable any one of his creditors to obtain a greater percentage of his debt than any other of such creditors of the same class." Id. § 60a. "Transfer shall include the sale and every other and different mode of disposing of or parting with property, or the possession of property, absolutely or conditionally, as a payment, pledge, mortgage, gift, or security." Id. 5 1, par. 25. So far as it is a question of fact, the superior court has found that "the orders in question were preferences, within the meaning of the bankruptcy act" Of the correctness of this conclusion, so far as it involves any question of law, there can be no doubt, in view of the express finding "that the Sugdens had reasonable cause to believe that...