Brown v. Pelonsky

Sheldon, J. The evidence was very meagre, but in our opinion it presented a question for the jury. They could find that Saltman was insolvent on and before March 14, 1908, and remained so until he went into bankruptcy four months and three days later. From the very character of the transaction between the defendant and Saltman, the giving of the notes bearing the rate of interest and coming due at the dates fixed, and the arrangement that Saltman should still buy goods of the defendant and pay for them either in cash or by checks to be dated some days ahead and then to be collected in regular course, in connection with what could be found to be the desperate condition of Salt-man’s finances, the jury could infer not only'that Saltman intended to prefer and did prefer the defendant, but that the defendant had reasonable cause to believe and actually did believe that Saltman intended thereby to give him a preference. Three of these notes were paid as they respectively came due. Certainly the jury could find that these payments constituted preferences, that Saltman so intended, and that the defendant had reasonable cause to believe this. That entitled the plaintiff to go to the jury. Purinton v. Chamberlin, 131 Mass. 589, 590. Killam v. Peirce, 153 Mass. 502. Chipman v. McClellan, 159 Mass. 363. Jaquith v. Winnisimmet National Bank, 182 Mass. 53. Atherton v. Emerson, 199 Mass. 199, 211. Ridge Avenue Bank v. Studheim, 145 Fed. Rep. 798. The defendant’s counsel has ingeniously argued that the pay [506] ments made by Saltman for goods bought by him after the -transaction of March could not be recovered as preferences, because they were really cash payments and so understood by the parties. But this point is not open to him; for his only exception was to the refusal of the judge to rule that the evidence was insiifficient to justify a verdict for the plaintiff, that is, a verdict for any amount. Moreover, the jury could find that these payments were made, not when the goods were bought and the checks dated ahead were given, but only when the days of their dates were respectively reached and they were paid. In that event, the purchases were not made for cash, and the payments were really payments of a precedent debt. In re Lyon, 121 Fed. Rep. 723. Exceptions overruled.