Stewart v. Asbury
| Decision Date | 11 March 1918 |
| Docket Number | No. 2187.,2187. |
| Citation | 201 S.W. 949,199 Mo. App. 123 |
| Parties | STEWART v. ASBURY. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Greene County; Guy D. Kirby, Judge.
Action by Roscoe Stewart, trustee in bankruptcy of the estate of Clifford T. Wetherell, against B. B. Asbury, doing business under the name of the Asbury "Motor Company. From a judgment for plaintiff, defendant appeals. Affirmed.
Oliver J. Page, of Springfield, for appellant. Roscoe Stewart and G. W. Goad, both of Springfield, for respondent.
The plaintiff, trustee in bankruptcy of the estate of Clifford T. Wetherell, recovered a judgment against the defendant for $424, from which defendant has appealed.
The petition contained three counts. The first count was brought on the theory that defendant had obtained a preference within four months prior to the time of the filing of the petition in bankruptcy, and that he knew that in taking the property, an automobile, on an indebtedness due him, he was receiving a preference, or had reasonable cause to believe he was receiving a preference out of the property of the bankrupt. The first count was based on preferences such as are recoverable under section 60b of the federal Bankruptcy, Act. The second count was based on section 67e of the act. The third count was to recover some payments of money which had been made within four months prior to the institution of bankruptcy proceedings. The court found for the defendant on the first and third counts, and rendered judgment on the second count for the trustee for the amount hereinbefore mentioned.
It is pleaded and shown by the evidence that on January 8, 1916, Clifford T. Wetherell filed a petition in bankruptcy which was referred to a referee, and that an adjudication of bankruptcy was duly made; that plaintiff, Roscoe Stewart, was the duly elected trustee; that the debts proven against the estate amounted to $6,320, and that the debts scheduled by the bankrupt amounted to $7,860; that the total assets turned over to the trustees and in his hands did not exceed the sum of $500; that on May 1, 1915, defendant sold to Wetherell an automobile, the regular price of which was about $1,100, but that the selling price in this transaction was $960. There was $280 cash paid when the car was delivered on May 1, 1915, the balance of the purchase price being evidenced by promissory notes of $60 each due on the first of each month. These notes undertake to retain title in the defendant, the payee therein; in other words, there was a conditional sale made by which the title to the car was retained in the seller, and the notes provided that the payee could take possession of the automobile on default and sell it and apply the proceeds on the payment of the debt. It is further shown that between May 1, 1915, when the notes, which retained title in the vendor and may either be treated as a chattle mortgage or as a conditional sale agreement, were given, and the day on which the automobile was delivered to Wetherell, and January 6, 1916, Wetherell obtained credit in his business (which was a delivery service concern) of something of $6,000. It is further pleaded and shown that of the $6,320 proven all the creditors to whom this amount was owing had become Wetherell's creditors during the time dating from when the notes had been given and withheld from record and during the time that Wetherell had the car in his possession. It is also shown that on the very day Wetherell was preparing his schedule in bankruptcy defendant filed his notes and took possession of the car, and that he later sold the car and applied the proceeds of the sale on the purchase-money indebtedness.
There is sufficient evidence to support the judgment as to the amount allowed, $424. The automobile had been run something like eight months, and the value was placed at less than half its original cost. In fact, there is little evidence upon which a judgment for a less amount could have been rendered. Nevertheless, there being sufficient evidence upon which to sustain the amount allowed, the judgment being one of a court of law, the appellate court is bound by its finding, in the absence of a showing of passion or prejudice or willful misconduct on the part of the trier of the fact. The cases cited by appellant bearing on the preponderance of the evidence are therefor inapplicable to this case.
Appellant has misconceived the theory on which the court found judgment in the case, as his brief, under point two, indicates that he conceived the judgment to have been rendered under the first count of the petition, which...
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Bentrup v. Johnson
...the bankrupt, are likewise void as against the trustee irrespective of the time when such secret liens were created. In Stewart v. Asbury, 199 Mo.App. 123, 201 S.W. 949, in course of the opinion it is held that it has long been the law of this State that a creditor who extends his credit to......
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Bentrup v. Johnson and Lehmann.
...the same rights as each or any creditor of the bankrupt had prior to bankruptcy. Section 67-a, Bankruptcy Act of 1898; Stewart v. Asbury, 199 Mo. App. 123, 201 S.W. 949; In re Bothe, 173 Fed. 597; Standard Computing Scale Co. v. Adam. 287 Fed. 347. (5) The fact that plaintiff has himself be......
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