F. N. Woodward et al. filed their petition in bankruptcy, and were adjudicated bankrupts November 26, 1901. They had become insolvent August 15, and on that day were not indebted to G. Edwin Alden, who afterwards, in ignorance of the insolvency, made sales to Woodward et al., and received payments from them therefor in the regular course of business, [189 U.S. 78, 79] and without any idea or intention on the part of Alden of obtaining a preference thereby, the sales and payments being as follows:
Sales. Aug. 17, 1901. Rubber $289 46 " 28, " " 657 89 Sept. 30, " " 644 28 Oct. 18, " " 535 99 Oct. 18, " Cartage 50 " 31, " Asbestine 10 40
Sept. 4, 1901. Payment of bill Aug. 17 $ 289 46 Sept. 28, 1901. Payment of bill Aug. 28 657 89 Oct. 29, 1901. Payment of bill Sept. 30 644 28
The merchandise sold Woodward et al. was manufactured by them, and the result of the transactions was to increase their estate in value. Alden petitioned to be allowed to prove his claim of $546.89.
The referee disallowed the claim unless at least the amount of $633. 88 was surrendered to the estate. The district judge reversed the judgment of the referee and allowed the claim, and the decree of the district court was affirmed by the circuit court of appeals (118 Fed. 270) on the authority of Dickson v. Wyman, 55 L. R. A. 349, 49 C. C. A. 574, 111 Fed. 726. Thereupon an appeal to this court was allowed and a certificate granted under 25, b, 2.
Mr. Harry J. Jaquith in propria persona for appellant.
Messrs. Eugene M. Johnson, Arthur T. Johnson, and Alonzo R. Weed for appellee.
Mr. Chief Justice Fuller delivered the opinion of the court:
The facts found established that on August 15 the aggregate [189 U.S. 78, 80] of the property of the bankrupts was not, at a fair valuation, sufficient in amount to pay their debts, but that Alden was ignorant of this, and, in good faith and in the regular course of business, sold material to the bankrupts, and received payment therefor several times between August 15 and November 26, when the petition was filed, on which day the amount of $ 546.89 for material delivered shortly before had not been paid. All the material so sold to them was manufactured by the bankrupts, and increased their estate in value.
The question is whether the payments made to Alden (or either of them) were preferences within 60 of the bankruptcy act of 1898 [30 Stat. at L. 562, chap. 541, U. S. Comp. Stat. 1901, p. 3445], which must be surrendered, under 57g, before his claim could be allowed.
Provisions of the act bearing on the subject are given below. 1 [189 U.S. 78, 81] In Pirie v. Chicago Title & T. Co. 182 U.S. 438 , 45 L. ed. 1171, 21 Sup. Ct. Rep. 906, the circuit court of appeals for the seventh circuit had affirmed an order of the district court for the northern district of Illinois, rejecting a claim of Carson, Pirie, & Company against the estate of Frank Brothers, bankrupts, and the case was then brought to this court on findings of fact and conclusions of law of the circuit court of appeals, made and filed 'pursuant to the requirements of subdivision 3, rule 36 of General Orders in Bankruptcy.' The first three of the findings were as follows:
It was further found that, at the time this payment was made, Frank Brothers were hopelessly insolvent, to their knowledge; but that Carson, Pirie, & Company had no knowledge of such insolvency, nor had reasonable cause to believe that it existed; nor did they have reasonable cause to believe that the bankrupts, by the payment, intended thereby to give a preference; and that they had refused to surrender to the trustee the amount of the payment made to them by the bankrupts, as a condition of the allowance of their claim. Upon the facts the circuit court of appeals concluded, as matter of law, that the payment made 'at the time and in the manner above shown' constituted a preference; and that, by reason of the failure and refusal of Carson, Pirie, & Company to surrender the preference, they were not entitled to prove their claim.
The judgment below was affirmed by this court, and it was held that a payment of money was a transfer of property, and when made on an antecedent debt by an insolvent was a preference within 60a, although the creditor was ignorant of the insolvency, and had no reasonable cause to believe that a preference was intended. The estate of the insolvent, as it existed at the date of the insolvency, was diminished by the payment, and the creditor who received it was enabled to obtain a greater percentage of his debt than any other of the creditors of the same class.
In the present case all the rubber was sold and delivered after the bankrupts' property had actually become insufficient to pay their debts, and their estate was increased in value thereby to an amount in excess of the payments made. The account was a running account, and the effect of the payments was to keep it alive by the extension of new credits, with the net result of a gain to the estate of $546.89, and a loss to the seller of that amount, less such dividends as the estate might [189 U.S. 78, 83] pay. In these circumstances the payments were no more preferences than if the purchases had been for cash, and, as parts of one continuous bona fide transaction, the law does not demand the segregation of the purchases into independent items so as to create distinct pre-existing debts, thereby putting the seller in the same class as creditors already so situated, and impressing payments with the character of the acquisition of a greater percentage of a total indebtedness thus made up.
We do not think the slight variation in the dates of sales and payments affords sufficient ground for the distinction put forward by counsel between the payments of September 4 and 28 and the payment of October 29 (which he concedes should be upheld) in their relation to the rubber furnished August 17 and 28 and September 30. All the material was sold and delivered after August 15, and neither of the items can properly be sigled out as constituting outstanding indebtedness, payment of which operated as a preference.
The facts as found in Pirie v. Chicago Title & T. Co. were so entirely different from those existing here that this case is not controlled by that. In view of similar vital differences it has been held by the circuit court of appeals for the first circuit (Dickson v. Wyman, 55 L. R. A. 349, 49 C. C. A. 574, 111 Fed. 726), second circuit (Re Sagor, 9 Am. Bankr. Rep. 361), third circuit (Gaas v. Ellison, 52 C. C. A. 366, 114 Fed. 734), eighth circuit (Kimball v. Rosenham Co. 52 C. C. A. 33, 114 Fed. 85), that payments on a running account, where new sales succeed payments, and the net result is to increase the value of the estate, do not constitute stitute preferential transfers under 60a.
Mr. Justice White and Mr. Justice McKenna, not being able to concur in the reasons by which the court, in the opinion just announced, distinguishes this case from that of Pirie v. Chicago Title & T. Co., and deeming the latter case controlling in this, dissent.
[ Footnote 1 ] 'Sec. 1a. The words and phrases used in this act and in proceedings pursuant hereto shall, unless the same be inconsistent with the context, be construed as follows: . . . (9) 'creditor' shall include anyone who owns a demand or claim provable in bankruptcy, and may include his duly authorized agent, attorney, or proxy; (10) 'date of bankruptcy,' or 'time of bankruptcy,' or 'commencement of proceedings,' or 'bankruptcy,' with reference to time, shall mean the date when the petition was filed; (11) 'debt' shall include any debt, demand, or claim provable in bankruptcy ; . . . (15) a person shall be deemed insolvent within the provisions of this act whenever the aggregate of his property, exclusive of any property which he may have conveyed, transferred, concealed, or removed, or permitted to be concealed or removed, with intent to defraud, hinder, or delay his creditors, shall not, at a fair valuation, be sufficient in amount to pay his debts.'
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.