Wetstein v. Franciscus

PER CURIAM. This is a writ of error from a judgment rendered by the United States Circuit Court for the Southern District of New York on a verdict of a jury in favor of the plaintiff below for the sum [904] of $6,642.29. Plaintiff sued as trustee in bankruptcy of Samuel Baerncopf to recover various sums paid to defendant below under circumstances claimed to constitute a preference under the provisions of the bankruptcy law. , It appeared from the evidence that Baerncopf and Wetstein, the defendant, were old friends; that Baerncopf resided and did business in Philadelphia and Wetstein resided in New York; that in June, 1900, Baerncopf owed Wetstein some $1,150, for which Wetstein held Baerncopf s note, payable June 8, 1900; that on said date said note was extended to December 8, 1900; that between the latter part of November and December 4, 1900, Wetstein advanced to Baerncopf some $4,000, and that when said note fell due Wetstein forthwith put his entire claim in the hands of his attorney for collection; that the attorney went on to Philadelphia, and collected $200 thereon; that on December 22d the attorney again went to Philadelphia, and collected $500, which was all that Baerncopf could then spare; that, with only one business day intervening, the attorney, on December 26th, went back to Philadelphia, taking Wetstein with him, to collect the balance of the account; that they arrived there just at the time when Baerncopf had effected a sale of his two stores to a pawnbroker for $8,444 in cash; that immediately thereafter Baerncopf met the attorney and Wetstein at Baerncopfs bank by appointment; that Baerncopf offered Wetstein a certified check in full settlement of his claim, but that Wetstein refused it, and insisted on having the money, and that Baerncopf thereupon paid defendant or his attorney some $5,000 in cash, being the full amount of the balance due on said claim. It was admitted that Baerncopf was insolvent, and that the payment of said claim left the rest of the unsecured claims, amounting to $20,-000, wholly unpaid. The fact of a preference having been proved, we think there was a sufficient question to go to the jury whether the defendant, by reason of the surrounding circumstances stated above, had “reasonable cause to believe that it was intended thereby to give a preference,” within the prohibition of the act. Inasmuch as no exception was taken to the charge, which seems to have been quite as fair to defendant as he was entitled to, the exception on the ground that there was not sufficient evidence to go to the jury should be overruled. The judgment is affirmed, with costs.