Sessler v. Nemcof

• Decision Date: 09 December 1910
• Docket Number: 2.
• Citation: 183 F. 656
• Parties: SESSLER v. NEMCOF.
• Court: U.S. District Court — Eastern District of Pennsylvania

183 F. 656

SESSLER v. NEMCOF.

No. 2.

United States District Court, E.D. Pennsylvania.

December 9, 1910

Clinton O. Mayer and Emanuel Furth, for complainant.

David Serber and Henry J. Scott, for respondent.

J. B McPHERSON, District Judge.

As it seems to me, the three injuries complained of in this bill may be completely redressed in a single suit at law.

The petition in bankruptcy was filed on October 29, 1907, and the bill charges, first, that the bankrupt 'prior to October 22, 1907'-- but how long prior is not specified-- intrusted the defendant with $8,000 to be used in paying the bankrupt's notes held by two banks in the city of Philadelphia. This money the defendant, 'with intent to cheat and defraud said banks and the said Herman Granich, * * * appropriated * * * to his own uses and purposes. * * * ' The bill does not aver when the misappropriation took place, nor that the defendant still has the money. Indeed, if he has applied it to his own use, this fact of itself negatives the idea that he can still be holding it as the bankrupt's hand, or for the bankrupt's benefit. In a word the charge is embezzlement, and this offense in its civil aspect can be adequately redressed by a suit to recover the money.

The second charge is thus set out:

'That in further pursuance of the plans of the said Herman Granich to hinder, delay and defraud his creditors, he concocted a plan with the said respondent whereby he stored large quantities of merchandise in various storehouses in the city of Philadelphia, said goods being stored at the instigation of and by the arrangements perfected by the said respondent. That the goods were conveyed by a teamster, Isaac Black, selected by the said respondent, and were contained in thirteen cases, which were distributed and stored by direction of the said respondent as follows:

'Osborne Storage House, Thirty-Sixth and Market streets, one case.

'Cassidy's Storage House, Fifty-Seventh and Vine streets, three cases.

'Hildebrand's Storage House, Broad and Cumberland streets, two cases.

'A storage house at Fortieth and Woodland avenue, seven cases.

'Complainant is informed, and therefore avers, that the said cases contained valuable pieces of cloth and woolens when delivered by the said Herman Granich to the said teamster, but the said respondent contrary to the arrangements made by him with the said Herman Granich replaced the said cases with other cloth and woolens less valuable, and containing straw and remnants, and appropriated the original cloth and woolens to his own use.

'Complainant is informed and believes, and therefore avers, that the value of said goods so taken by the said respondent is approximately $12,000.'

Whether the defendant still has the goods does not appear from the bill. Neither does it appear when the foregoing acts were done, nor what the 'plan' was, nor the 'arrangements' between the defendant and the bankrupt. The averment is that the defendant of his own motion, and for his own profit, substituted inferior or worthless articles for valuable cloth and woolens, and appropriated these goods to his own use. This act was either theft or an unlawful conversion, and can be redressed civilly by suing to recover the value of the goods.

The third charge is this:

'That prior to the time the said Herman Granich fled the jurisdiction he had had many commercial transactions with the said respondent, and said respondent was then indebted to him in the sum of $12,518.89 for goods received from the said Herman Granich up to one week previous to the failure. That within said week the respondent received further large quantities of...