Lowenstein v. Thomas

PER CURIAM. In the former decree entered in this case, on December 14th of thé present term, we erroneously affirmed, when we should have reversed. Now, therefore, said decree is recalled and vacated, and it is ordered that the following be entered in lieu thereof, to wit: The decision in this case has been withheld to await action of the Supreme Court on appeal in Kahn v. Cone Export & Commission Company, decided by this court March 15, 1902, and reported in 115 Fed. 290, 53 C. C. A. 92, wherein the same question of preference was involved; and, said appeal having been diumissed by reason of the decision of the Supreme Court on the points involved in Jaquith v. Alden, 189 U. S. 78, 23 Sup. Ct. 649, 47 L. Ed. 717, we now reverse the decree of the District Court, with costs, and remand the cause, with instructions to allow the claims of Boyd, Lunham & Co. and of the Carlton Dry Goods Company against the estate of Wright & Berryhill, bankrupts, as presented, and to allow the claim of B. Lowenstein & Bros. against the estate of Wright & Berryhill, as presented, upon the surrender by said Lowenstein & Bros. of the sum of $135.04, the last-mentioned sum being the amount of actual preference received by said B. Lowenstein & Bros. from Wright & Berryhill, bankrupts, within four months prior to the adjudication in bankruptcy, and to otherwise proceed in said cause according to the opinion of this court in Kahn v. Cone Export & Commission Co. and the opinion of the Supreme Court in Jaquith v. Alden.