In re Leverton

ARCHBADD, District Judge. The referee has refused to allow the bankrupt his $300 state exemption because of the fraudulent concealment of assets. There can be no question of the propriety of this action if the facts warrant it. In re Yost, 9 Am. Bankr. Rep. 153; In re Alex, 15 Am. Bankr. Rep. 450. The exemption given by the law is intended for the unfortunate, and not the dishonest, debtor. Strouse v. Becker, 38 Pa. 190, 80 Am. Dec. 474; Imhoff’s Appeal, 119 Pa. 350, 13 Atl. 279. But the finding of fraud is challenged. And the question is whether the evidence justifies it. A careful consideration of the case satisfies me that it does, and that the referee was entirely right in the disposition made of it. The truth is, notwithstanding the contention of counsel, that the fraud is too glaring to be defended. A small trader, in a country town of about 1,000 inhabitants, enjoying fair credit, by extraordinary orders far beyond his needs and triple those of previous seasons, in the space of three short months, gets together, in small lots, from all over the country, some $11,000 worth of goods, in addition to those which he had on hand; and then, upon being pressed by creditors, and forced into bankruptcy, turns up with a mere fraction of the stock so secured, the rest having been disposed of in some unexplained way, with practically nothing to show for it. No books are produced to throw light upon the transaction, except some very minor and meager, not to say manufactured, ones; nor, if there were others, as is more than likely, is their disappearance accounted for. Deft in the store, say's the bankrupt, but the receiver was unable to find them, searching diligently, and that one or two have turned up since in the hands of a friendly trustee does not help the situation. A special cash sale, largely advertised, with extra clerks, conducted night and day, for over three weeks, from which no money is deposited in bank, and no merchandise creditors paid, is a part of the story; while large sales in bulk to convenient relatives at less than cost, and goods shipped away by night, on at least one and probably several occasions, are other features. There are also minor matters of more or less significance, such as expensive and unusual goods purchased and unaccounted for, which do not need to be specifically alluded to. [929] That the bankrupt is called upon to explain, there can be no question. In re Alex, 15 Am. Bankr. Rep. 450; Lesser v. Driesen, 2 Lack. Leg. N. (Pa.) 343. And he attempts to do so; but his explanation is utterly unsatisfactory, not to say lame and shifty. Payment of bills is claimed, but there are none worth mentioning for merchandise after August. Business and family expenses are also set up; but, even if the referee has cut these down beyond what might be, they are by no means vouched or to be allowed to the extent contended for. There is also an alleged purchase of gold stock by the bankrupt, which he claims to have paid $1,250 for, in cash, in October, to his cousin Harry Kaufman. But, aside from the certificate, which bears date in November, and notwithstanding that he took receipts for the payments, there is nothing but his own statement to substantiate it. And the purchase was at a time when he was selling his goods as fast as he could in order to get money, as he says, to meet the demands of creditors, of which he now wishes to make out that he was solicitous. Great stress is laid on the testimony of the bankrupt that the stock which he had at the close amounted to $8,000, and this enters into every showing that is sought to be made in his favor to which it is essential. But the idea that the depleted and broken up odds and ends which were found by the receiver had anywhere near that value is preposterous. According to the first appraisers, who seem to have known the cost marks and followed them as to new goods, there was but $3,400 worth, of which $432 was for cash register and fixtures, and this was still further reduced by the trustee’s appraisement to $2,400; the amount realized at the sale being $2,282. The referee, out of abundant caution, allows $5,000, which is certainly liberal, and still finds nearly $7,000 worth of goods unaccounted for; nor is he out of the way in estimating the stock of the bankrupt before he got in his extraordinary purchases at another $5,000. It is said that the only evidence upon the subject is the statement of the bankrupt, who puts it at $3,000. But his usual line was from $5,000 to $6,000, and he admits that from January to August he was carrying the average, which warrants the conclusion that he had that quantity on hand at the close of that period. The importance of these amounts is manifest, particularly the latter; for it is only by putting the stock at $3,000 before the August, September, and October goods came in, and calling it $8,000, when the bankrupt went out of business, that counsel rely to figure him out of his dilemma. The thing that stares us in the face, after all has been said, is that within three months or less he got $11,000 worth of goods, in addition to what he had on hand, whether $3,000 or $5,000, making from $14,000 to $16,000 in all, of which $6,000 was received in October, when affairs were drawing to an end; by far the larger part also being shipped by express instead of freight, presumably by his direction, showing the anxiety to get them, as well as the disregard of expense in doing so. The question is what became of all this accumulation in the little time it was in his hands. Have the goods, he certainly did; and within the time mentioned, as the claims against him conclusively prove. Nhr does it matter that some of them may have been ordered in the spring and summer. It is when he got them, and not when they were ordered, that counts in this reckoning. Neither [930] are we concerned with what he paid out, or what expenses he may have been under, before that. By no possibility could this come out ot what he did not get till afterwards. It is of no consequence, therefore, that merchandise bills to the extent of $3,500, as vouched by his bank checks, were liquidated from January .to August,- going back to this date, as urged by counsel. It tells nothing as to what was done with the goods received from August to October to know what was paid out on merchandise or anything else up to that time. Specifically stating, then, the case that is made out against the bankrupt, he is chargeable with the goods which he had and with those which came into his hands, worth from $14,000 to $16,000 at wholesale, to say nothing as to his profits upon them. On this he is entitled to credit for the value of the stock found in the store after he left it. And, assuming this to be as much as he had before the other goods were added to it, it leaves $11,000 or practically the amount of his extraordinary purchases. Out of this is to come the $270 deposited in bank and checked out during the contested period. And there -was also a note of $150 at the First National Bank of Towanda which was taken care of. The general expenses of household and store are also to be allowed which — somewhat more than the referee — I have estimated at from $300 to $500. And freight and expressage were further paid to the amount of about $200. Sixty-six dollars and twenty cents worth of goods were' also sold on credit, and not paid for; and $94.65 of others were returned, not having arrived until after the failure. If to this is added the $1,250 claimed to have been paid by the bankrupt for gold stock, which, upon any close consideration of the case, might not pass muster, and the $450, said to have been paid, through his wife, to Paltrowitz, his wife’s relative, at Elmira, for borrowed money, which is open to even greater question,' the total aggregate is only from $2,800 to $3,000, leaving a discrepancy, according to this, of over $8,000. The bankrupt’s uncles, M. and B. Kaufman, to be sure, got a- large amount of this — some 39 per cent, by weight, which is charged on the books, after allowing 10 per cent, discount, at $1,342, but, taking the weight, was probably three times that. But the Kaufmans paid cash for whatever they got, according to the story, so that it does not affect the outcome, the bankrupt being chargeable with the money or the goods, whichever way you look at it. The same is to be said of the cash taken in at the October sale, which is entered on the books at $2,291.17, the bankrupt thus from these two sources alone getting over $3,500 which he apparently holds onto. But without regard to this, upon the best showing which can be made, as already pointed' out, some $8,000 worth of goods have disappeared — by which, it'will be observed, I iticrease, instead of reduce, the referee’s findings — as to which the only conclusion to draw is that the bankrupt has made away either with the goods themselves or the proceeds, which he withholds and conceals from his creditors. The exemption given by the law was nevér intended for any such character’of debtor. The exceptions are dismissed, and the report of the referee is confirmed.