Perkins v. Maier & Zobelein Brewery

McFARLAND, J.

Action by assignee in insolvency to recover the value of certain personal property, consisting of wines, liquors, cigars, saloon fixtures, etc., alleged to have been the property of the insolvent, Kuhl, and to have been transferred by him, in violation of the insolvent law, to defendant, a few days before Kuhl filed his voluntary petition in insolvency. Judgment went for plaintiff in the court below, and defendant appealed from the judgment and from an order denying a new trial.

The appellant seeks a reversal on three grounds. The first point is, that the court erred in sustaining a demurrer to the “ further answer and defense, and by way of supplemental answer,” set up in paragraph 8 of the answer. In this part of the answer it is averred that on October 9,1897, which was more than two months after" the commencement of the action, defendant

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tendered, in writing, the possession of the property mentioned in the complaint, with the right to transfer and convey the same,” upon certain conditions mentioned in the answer as part of the tender. Appellant seems to rely for this point on section 50 of the Insolvent Law of 1895. That sec

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tion, however, has no reference to pleadings or defenses in an action, but refers to the proof of claims against the estate and the right to dividends; and it merely provides that one who has accepted any preference shall not be allowed to prove his claim or recover any dividend “until he shall have surrendered to the assignee all property, money, benefit, or advantage received by him under such preference.” But neither under that section, nor under the general law about pleadings, would this part of the answer be of any avail; for the alleged tender is coupled with the conditions, that “in the event that the court shall finally determine that the defendant was and is the owner, and at all times mentioned in such complaint had been the owner, this defendant would hold plaintiff for such damages as it might suffer by reason of any transfer by said plaintiff, and further notified plaintiff, as a part of said tender, that this defendant did not waive, by such tender of possession and right of transfer, defendant’s claim of ownership of said property.” There is no legal significance whatever in averring this curious sort of offer, and calling it a “ tender ” or “ surrender”; no defense was thereby presented, and the demurrer was properly sustained.