Mr. Henry J. Cookinham for appellant.[ Nat. Bank of Newport v. Nat. Herkimer Co. Bank of Little Falls 225 U.S. 178 (1912) ]
[225 U.S. 178, 180] Mr. Myron G. Bronner for appellee.
Mr. Justice Hughes delivered the opinion of the court:
This suit was brought in the district court of the United States for the northern district of New York by Charles B. Mason, as trustee in bankruptcy of the Newport Knitting Company, to recover the amount of an alleged preference. Decree for the complainant was reversed by the circuit court of appeals, which remanded the cause with instruction to dismiss the bill. 97 C. C. A. 155, 172 Fed. 529. Subsequently, the trustee assigned the claim in suit to the National Bank of Newport, New York, which was substituted as complainant and brought this appeal.
The bankrupt, the Newport Knitting Company, was organized in 1900, by Titus Sheard and his associates, and was engaged in the manufacture of knit goods at Newport, New York. Proccedings for its voluntary dissolution were begun in October, 1903, and on December 30, 1903, a [225 U.S. 178, 181] petition in bankruptcy was filed against it. It was adjudged a bankrupt on January 23, 1904
Several of the officers and directors of this company were also officers and directors of a corporation known as the Titus Sheard Company, which manufactured knit goods at Little Falls. Titus Sheard was the leading spirit in both corporations; in each his son-in-law was the secretary and his nephew the general manager. The books of the Newport Knitting Company were kept at the office of the Titus Sheard Company. It does not appear that either company held stock in the other, nor is it shown to what extent the same persons had a stock interest in both. And upon the record the conclusion must be that, while the management of the two concerns was largely in the same hands, they were distinct organizations, conducting separate businesses.
The Titus Sheard Company had a deposit account and discounted its parper with the defendant, the National Herkimer County Bank of Little Falls, of which Sheard was a director. The Newport Knitting Company was not a customer of the defendant bank, but kept its account with the National Bank of Newport.
The transaction which is alleged to constitute a perference was as follows: On January 7, 1901, the Newport Knitting Company gave its note for $5,773.05, at four months, to the Titus Sheard Company, to pay for machinery and supplies. The Titus Sheard Company indorsed the note and had it discounted by the defendant bank, receiving the avails for its own use. The note was reduced by part payment to $5,000, and for this sum it was renewed every four months with like indorsement, the last renewal of this sort being on May 11, 1903.
In August, 1903, the defendant bank held a large amount of paper made or indorsed by the Titus Sheard Company, and insisted upon security. Thereupon the Titus Sheard Company submitted to the bank a statement of its af- [225 U.S. 178, 182] fairs, and on August 11, 1903, executed an instrument, also signed by Mr. Sheard and certain other officers individually, by which, after reciting the determination to liquidate its business, they purported to pledge its 'mill property, all the machinery in the same, and the warehouse, together with all our assets of our company, and also the individual properties, as per list hereto attached, to secure the National Herkimer County Bank for all notes of ours which they now hold, or may hereafter hold, and for all paper indorsed by us, now held by the bank, or that may be held by it in the future.' This agreement evidently contemplated that the Titus Sheard Company should continue in possession of its property and should have charge of the winding up of its offairs, on the understanding expressed, which was, in substance, that the property should be speedily converted into money, that bills payable held by creditors other than the bank should be renewed so far as possible, and that 'all surplus moneys, as fast as collected, not required to pay the outstanding notes held by other creditors,' should be applied in payment of the indebtedness to the bank. It was declared to be the intention to dispose of the property so that all the indebtedness should be paid before January 1, 1904.
On August 22, 1903, there was substituted for the above-mentioned note of the Newport Knitting Company, indorsed by the Titus Sheard Company and held by the bank, a new three months' note of the Newport Knitting Company for the same amount, similarly indorsed; and the Titus Sheard Company secured this note by the delivery to the bank of specific assignments of its bills receivable, amounting to $6,300. On September 26, 1903, before maturity, the Titus Sheard Company paid to the bank the amount of this note, less accrued interest, $4,953.33, and took up the note and collateral. This payment was made by the Titus Sheard Company, acting in its own behalf, by a check drawn against the funds to [225 U.S. 178, 183] its credit in the bank. The amount so paid was then charged by that company to the Newport Knitting Company, to which it was indebted on open account in a larger sum; and on the books of the Newport Knitting Company a corresponding credit was given to the Titus Sheard Company, So far as appears, this charge of the sum paid on the note against the amount owing to the Newport Knitting Company was not known to the bank.
It is insisted that this transaction amounted to a preference of the bank by the Newport Knitting Company. It is said that 'the bankrupt parted with property to the amount of the note, and the bank received it and was benefited to that amount,' of the detriment of the other creditors of the Newport Knitting Company, then insolvent; or, as the district court put it, that 'a short cut was taken by common consent, and the check was passed to the bank and the amount charged to the Knitting Company, so that it, in fact, paid the note.'
The pertinent provisions of the bankruptcy act as they stood at the time the transaction occurred were as follows:
But, unless the creditor takes by virtue of a disposition by the insolvent debtor of his property for the creditor's benefit, so that the estate of the debtor is thereby diminished, the creditor cannot be charged with receiving a preference by transfer. Western Tie & Timber Co. [225 U.S. 178, 185] v. Brown, 196 U.S. 502, 509 , 49 S. L. ed. 571, 574, 25 Sup. Ct. Rep. 339; Rector v. City Deposit Bank Co. 200 U.S. 405, 419 , 50 S. L. ed. 527, 532, 26 Sup. Ct. Rep. 289. 'These transfers of property, amounting to preferences, contemplate the parting with the bankrupt's property for the benefit of the creditor, and the consequent diminution of the bankrupt's estate.' New York County Nat. Bank v. Massey, 192 U.S. 138, 147 , 48 S. L. ed. 380, 384, 24 Sup. Ct. Rep. 199.
Here, the payment to the bank did not proceed from the bankrupt, the Newport Knitting Company. The Titus Sheard Company had a standing quite apart from its relation to the Newport Knitting Company as a debtor in the account. In the transaction with the bank, the Titus Sheard Company acted on its own behalf. As the holder of the original note, that company had indorsed it to the bank, taking for its own benefit the proceeds of the discount. Its obligation as indorser was continued by the renewals, and to secure the bank on the last renewal it had deposited its own collateral. It took up the note with its own funds and received back the security. Neither directly nor indirectly was this payment to the bank made by the Newport Knitting Company, and the property of that company was not thereby depleted.
The fact, then, is not, as it is contended, that 'the bankrupt parted with property to the amount of the note, and the bank received it,' but rather that the bankrupt parted with nothing, and the bank received the money of the indorser, and redelivered to the indorser the paper and collateral. When the Titus Sheard Company took up the note, it was credited with the amount of the payment in its account with the Newport Knitting Company. But the question, in the circumstances disclosed, of the right of the Titus Sheard Company to a set-off against its indebtedness on the account, is distinct from the question whether the bank received a preference. Western Tie & Timber Co. v. Brown, supra. It would be only by the allowance of such a set-off that the bankrupt estate would be diminished. And, as was said by the circuit [225 U.S. 178, 186] court of appeals, 'if the Sheard Company, knowing the Newport Company to be insolvent, acquired the note with a view to using it as a set-off or counterclaim against its debt, it could not legally do so. Bankruptcy Law , 68b.' The amount of the indebtedness of the Titus Sheard Company could still be collected by the trustee.
It is urged that, by virtue of the instrument already mentioned, which was executed by the Titus Sheard Company on August 11, 1903, all the assets of that company had been assigned to the bank, and hence, that the security placed with the bank of the last renewal of the note was already held under this instrument, and continued to be so held after the note was taken up, despite the surrender of the specific assignment. It is said further that, as a result of the execution of this instrument, the bank 'stepped into the place of the Sheard Company,' and knew the condition of the account with the Newport Knitting Company and the charge that was made to it.
The argument attributes to the instrument undue importance and an effect which it did not accomplish. It was far from being an adequate legal security. Apparently, the Titus Sheard Company was left in the possession of the property, and its officers continued its management with freedom to sell, to collect accounts, to pay outstanding notes held by others than the bank (so far as they could not be renewed), and generally to liquidate the business in accordance with the expressed intention to convert the assets into money as speedily as possible, and thus to meet all the obligations to the bank. To this end, the company and its officers were to 'work faithfully,' and the surplus moneys as fast as realized were to be devoted to the payment of the indebtedness. It was natural that the bank should require security for the note of a more definite and satisfactory character; that is, proper collateral. And when the bank received the specific collateral deposited by the Titus Sheard Company on the [225 U.S. 178, 187] renewal, the bank obtained a control over it which otherwise it did not possess, and this control is surrendered on the redelivery. In view of the effort that was being made to reduce the obligation of the company held by the bank, it cannot be thought surprising that the note with the collateral was taken up before maturity. It was not shown that the bank had nothing to do with the credit to the Titus Sheard Company in its account with the Newport Knitting Company. Nor does it appear that the bank knew of the condition of this account, or had any reason to believe that it was proposed to set off the payment against an indebtedness to the bankrupt.
The bank dealt with the Titus Sheard Company as the indorser of the paper; and the trustee failed to establish any right to recover the moneys it received.