In re Lowry & Pike, Inc.

NETERER, District Judge. [1] Under equity rule 29 every defense in point of law for insufficiency of fact to constitute a valid cause of action shall be made by motion to dismiss or in the answer. I think the motion of the alleged bankrupt may be considered as a motion to dismiss. The petitioner is not misled, and upon the merits it is contended by the petitioner that the language used in the petition is of sufficient definiteness to identify the claim of the alleged bankrupt, and cites Sabin v. Blake McFall Co., 223 Fed. 501, 139 C. C. A. 49, 35 Am. Bankr. Rep. 179. In this case the petition alleged: “Money duo on open account from Equal Rights Company, Incorporated, * * * upon a stated account rendered July 2, 1914, $80.00.” [2, 8] The nature and relation of this contract is fully set out. This is absent from the petition in this case. An essential element to give the alleged bankrupt definite information is whether the contract is oral or in writing. If in writing, it is entitled to have a copy set out, so that it may have the statement of the fact, instead of the conclusion of the petitioner, and, if oral, the alleged bankrupt is entitled to know with whom the oral contract was made, so as to be prepared to meet the issue when it is presented if the claim is untrue, and if true it may be admitted. The alleged bankrupt is entitled to have a distinct and not" inferential allegation of fact relative to the contract of loan which is alleged.1 The general rules of pleading and practice apply to pleadings in bankruptcy. 1 Collier (1921 Ed.) 460. The motion to dismiss is granted, with permission to amend as herein indicated. Footnotes [1] In re Randall, Deady, 557, Fed. Cas. No. 11,551; In re Farthing (D. C.) 202 Fed. 557; In re Blumberg (D. C.) 133 Fed. 845; In re Rosenblatt & Co., 193 Fed. 636. 113 C. C. A. 506 (C. C. A. 2d); In re Conn. Brass & Mfg. Corp. (D. C.) 257 Fed. 445, 449; In re Bellah (D. C.) 116 Fed. 69: Doty v. Mason (D. C.) 244 Fed. 587, 590. [2] <$=>For other caaes see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes