Shanberg v. Saltzman, 2794.
| Decision Date | 06 March 1934 |
| Docket Number | No. 2794.,2794. |
| Parties | SHANBERG et al. v. SALTZMAN. |
| Court | U.S. Court of Appeals — First Circuit |
Max Winograd, of Providence, R. I. (William J. Carlos, of Providence, R. I., on the brief), for appellants.
Maurice Robinson, of Providence, R. I., for appellee.
Before WILSON and MORTON, Circuit Judges, and PETERS, District Judge.
This is an appeal by creditors from an order of the District Court granting to Saltzman, the bankrupt, a discharge. The objections to the discharge were heard in open court by the District Judge. On well-settled principles of law his findings of fact must stand unless we are satisfied that they were clearly wrong. In re Slocum, 22 F.(2d) 282 (C. C. A. 2).
Several specifications of objection were relied on. We find it necessary to consider only one, viz., that the bankrupt made false oaths in the bankruptcy proceedings, with respect to the Breitman notes and claim. See Bankr. Act §§ 14 and 29b, 11 USCA §§ 32, 52 (b). Breitman, a brother-in-law of the bankrupt, filed a proof of claim on notes alleged to have been made by the bankrupt, aggregating $2,700. In the schedules, which the bankrupt signed and swore to, he listed Breitman as a creditor upon these notes; and in the proceedings he testified that the notes were given by him at approximately the dates which appeared on them, i. e., between July 29, 1929, and June 14, 1930.
There were circumstances which cast doubt upon this story. The bankrupt's books at the time of the failure contained no record of any such transactions. After the filing of the petition and before the books were taken over by the receiver or trustee, the bankrupt admittedly inserted entries relating to these notes in such form that they would appear to have been contemporaneous with the transactions. Breitman's canceled checks, which were said by him and the bankrupt to have been the advances for which the notes were given, did not precisely correspond with the notes. This discrepancy might be of so significance, or it might indicate, as counsel for the objector contended, that the Breitman claim and notes were a fraudulent after-thought, and that old checks had been hunted up by Breitman to give the notes apparent foundation. In view of the bankrupt's admission, on his examination, that in certain particulars relating to these notes be had testified falsely, the reliability of his testimony was seriously weakened.
One Clark, a qualified expert on handwriting and analogous matters, testified before the District Judge that, from an examination of the ink in the body and the signatures of the notes offered, he was confident they were written not more than eight weeks before the time when they were submitted to him for examination, i. e., not earlier than January 1, 1932 — the bankruptcy petition was filed December 22, 1931; that ink undergoes chemical changes by oxidation for a certain period after the writing is made; that this period had not completely elapsed as to these notes at the time when he saw them; that both the alleged original notes, and the copies of them which were annexed to Breitman's proof of claim, were with one exception on the same sort of blanks and written with the same ink, and apparently at the same time. On the printed record, Clark's testimony appears reliable and persuasive. No evidence was offered in contradiction of it. Breitman did not testify at the hearing on discharge.
The District Judge in giving his oral judgment stated that, when this specification of objection was first brought to his attention, inasmuch as it involved a charge of perjury against the bankrupt, he caused it to be referred to the United States attorney for investigation; that the United States attorney had reported that after investigation the evidence was not in his opinion sufficient to justify prosecution. The District Judge then said, in substance, that, as the evidence would not warrant conviction on the criminal charge, it was not in his opinion sufficient to sustain this objection to the...
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