McKey v. Lee

• Decision Date: 02 January 1901
• Docket Number: 720.
• Citation: 105 F. 923
• Parties: McKEY v. LEE et al.
• Court: U.S. Court of Appeals — Seventh Circuit

105 F. 923

McKEY v. LEE et al.

No. 720.

United States Court of Appeals, Seventh Circuit.

January 2, 1901

The facts are not disputed, having been agreed upon before the referee and in the District Court, as follows:

1. 'That on the 17th day of January, A.D. 1900, said Patrick F. Ryan duly filed his voluntary petition in bankruptcy herein, and was on the same day duly adjudicated a bankrupt. That the first meeting of creditors was duly held, and said Edward B. McKey at said meeting of creditors was duly elected trustee for said bankrupt, and at once qualified, and has been acting as such trustee since the time of his election.

2. 'That said Patrick F. Ryan was on said 17th day of January, A.D. 1900, and for four months next prior thereto had been insolvent, and that the fair cash value of his assets was and had been during the whole of said four months less than the amount of his liabilities by at least the sum of twenty thousand dollars, but that the said Lee, Tweedy &amp Co., claimants, were not aware of such insolvency, and had no reasonable cause to believe, up to the time of the filing of said petition in bankruptcy herein, that said Patrick F. Ryan was insolvent.

3. 'That on the 17th day of September, A.D. 1899, said bankrupt was indebted to said Lee, Tweedy & Co. in the sum of $874.52.

4. 'That said Lee, Tweedy & Co. received from said bankrupt in the regular course of business, without knowledge of the insolvency of said Patrick F. Ryan, the following sums of money:

'On the 3d day of October, A.D. 1899, the sum of $500; on the 18th day of October, A.D. 1899, the sum of $334.56, and on the 22nd day of December, A.D. 1899, the sum of $500, making a total of $1,334.56 so received; that said several sums were received by said Lee, Tweedy & Co. in part payment of and duly credited upon the account and claim of said Lee, Tweedy & Co. against said bankrupt.

5. 'That said Lee, Tweedy & Co. sold and delivered merchandise to said bankrupt within the four months next preceding the time of the filing of said petition in bankruptcy herein, as follows:

On September 23, 1899 . . .

$93.84

On September 23, 1899 . . .

$1,050.10

On September 23, 1899 . . .

$112.50

On September 25, 1899 . . .

$184.00

On September 28, 1899 . . .

$196.68

On September 28, 1899 . . .

$35.61

On September 28, 1899 . . .

$23.05

On October 3, 1899 . . .

$63.82

On October 3, 1899 . . .

$359.43

On October 21, 1899 . . .

$231.25

On December 1, 1899 . . .

$54.00

On December 2, 1899 . . .

$175.75

On December 2, 1899 . . .

$34.50

Total amount of merchandise sold and delivered by said claimants within said period of four months . . .

$2,614.53

6. 'That on the 6th day of February, A.D. 1900, said Lee, Tweedy & Co. duly filed their claim against said estate for the sum of twenty-one hundred and eight dollars ($2,108).

7. 'That on the 13th day of April, A.D. 1900, said trustee duly filed the following objections to said claim of Lee, Tweedy & Co.

"Now comes Edward B. McKey, trustee of said estate, and objects and excepts to the claim of Lee, Tweedy & Co., which claim was proved and filed herein on the 6th day of February, A.D. 1900, and was allowed on the 6th day of February, A.D. 1900, for the sum of $2,108, and for cause of said objection and exception shows that said Lee, Tweedy & Col have received a preference, that is to say, the said Patrick F. Ryan, while insolvent, paid to said Lee, Tweedy & Co. the amount of $1,334.56, within the four months next preceding the time of the filing of the petition in bankruptcy herein.

"Wherefore the said Edward B. McKey, trustee, prays that the said claim be reconsidered, and that an order be entered herein disallowing the said claim, unless said claimant shall surrender said preference."

Upon this statement of facts the referee ordered that the objections of the trustee be overruled, and allowed the claim of Lee, Tweedy & Co. for the sum of two thousand one hundred and eight dollars.

Upon the hearing in the District Court this order was reversed, and in its stead it was ordered that the said claim of Lee, Tweedy & Co. for the sum of two thousand, one hundred and eight dollars be disallowed, unless said Lee, Tweedy & Co. should, within ninety days, surrender to the trustee the sum of five hundred dollars; and that upon such surrender the claim of Lee, Tweedy & Co. should be allowed for the sum of two thousand, six hundred and eight dollars. It was further ordered that the objections of the trustee to the allowance of said claim, unless and until the said Lee, Tweedy & Co. surrender the sum of one thousand, three hundred and thirty-four dollars and fifty-six cents, be overruled.

From this ruling of the District Court the appeal was prosecuted.

S. A. Levinson, for appellant.

Charles F. Harding and T. O. Bunch, for appellees.

Before WOODS and GROSSCUP, Circuit Judges, and BUNN, District Judge.

After the foregoing statement of the case, GROSSCUP, Circuit Judge,, as follows:

Paragraph (g), section 57, of the Bankruptcy Act, provides:

'The claims of creditors who have received preferences shall not be allowed unless such creditors shall surrender their preferences.'

Paragraph (a), section 60, provides:

'A person shall be deemed to have given a preference if, being insolvent, he has procured or suffered a judgment to be entered against himself in favor of any person, or made a transfer of any of his property, and the effect of the enforcement of such judgment or 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.'

Paragraph (b...