Brandenburger v. Chipman

WEYAND, J.,

pro tem.

Charles C. Studarus and Charles C. Studarus, Jr., were copartners doing business as farmers, under the name of Charles Studarus & Son. On October 15, 1924, they filed their petition in bankruptcy in the United

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States district court for the northern district of California, and said partnership was on that day adjudicated a bankrupt. Their farming operations had, prior to the adjudication in bankruptcy, been conducted in Sacramento and Yolo Counties. The plaintiff above named, the trustee in bankruptcy, is the respondent herein, and he will be referred to hereafter as the trustee. Studarus & Son will be referred to as the bankrupts.

The trustee above named, by an amended complaint filed in the superior court of Sacramento County, on October 27, 1925, sought to recover from Eldon Chipman, the appellant, the sum of fifteen hundred dollars, which sum was by the trustee averred to be property of the estate of the bankrupt partnership, and illegally held by the defendant Eldon Chipman.

Judgment in the lower court was in favor of the trustee, and the defendant Chipman appeals to this court.

The complaint contains three causes of action. In the first cause of action it is alleged that the bankrupt firm paid the defendant Chipman the sum of fifteen hundred dollars, on or about the tenth day of October, 1924, upon an indebtedness, “claimed” by the bankrupt partnership, to be due Chipman. By proper averments this is stated to be void, as it permitted a preference to be given Chipman. The second count states that for more than two years next preceding the 10th of October, 1924, the partnership was insolvent, and that defendant Chipman knew of that condition. It is then alleged that on or about August, 1923, this being more than a year before the adjudication in bankruptcy, Chipman, to aid the bankrupt partnership to conceal its property, accepted from the partnership an assignment of the sum of fifteen hundred dollars, due to the partnership, from a debtor of the partnership, and that defendant Chipman received that sum of money, the property of the partnership, upon an understanding that he, Chipman, was to hold the same for the partnership and thus conceal the same from the partnership creditors. The third cause of action in said complaint is upon the common count for money had and received by Chipman for the use and benefit of said copartnership.