Ballou v. Andrews Banking Co.

COOPER, C.

Plaintiff as assignee of “Greenberg Brothers,” a corporation, brought this action to recover of defendant the value of certain assets and book accounts alleged to have been fraudulently transferred to defendant within one month prior to the filing of the petition in insolvency. The cause was tried by a jury and a verdict rendered in favor of plaintiff for one thousand and fifty-two dollars and eighteen cents. Judgment' was accordingly entered. This appeal is from the judgment and an order denying defendant’s motion for a new trial.

The principal point urged here is that the evidence is not sufficient to sustain the verdict. We think, after a careful consideration of the evidence, that the verdict is supported by it. The copartnership of “Greenberg Brothers” was composed of

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two "brothers, M. Greenberg and L. J. Greenberg, who, in the copartnership name, had, for more than one year prior to March, 1895, been carrying on a retail grocery store in the city of ‘San Luis O'bispo. B. Schwartz is the father in law of M. Greenberg, one of the copartners, and resides in the city of 'San Francisco. In the early part of the year 1894 the copartnership borrowed from defendant nine thousand dollars, giving two promissory notes therefor, both signed by said B. Schwartz as surety. In the latter part of February, 1895, there was unpaid upon said promissory notes about eight thousand dollars, and defendant, having reason to believe that the copartnership was insolvent or in failing circumstances, telegraphed to said Schwartz at San Francisco that it would be necessary to look to him for payment of the said indebtedness. Immediately after the receipt of this telegram, on the second day of March, 1895, the said copartnership made a transfer in writing, on page 1004 of their ledger, to said Schwartz, of the book or ledger and each and every account therein, and all sums of money due the firm, together with the blotters, journals, and other books of account of said firm, which transfer was signed “Greenberg Brothers.” On March 18, 1895, the said firm, upon petition then filed, were adjudged insolvent. The transfer was therefore-made within one month before the petition in insolvency was-filed. (Insolvent Act 1880, sec. 55.) The assignment, being of all the accounts, books, journals, ledger, and blotters made by merchants in the retail grocery business in San Luis Obispo to the father in law of a member of the firm residing in San Francisco, was not made in the usual and ordinary course of business of the copartnership.