In re Abbott

Belcher, C. C. This is a proceeding commenced under the insolvent act of 1880, for the purpose of putting Alvin B. Abbott, an alleged insolvent, into involuntary insolvency. The court below adjudged him to be an insolvent debtor, and he has appealed, the case coming here on the judgment roll.

Two points only are made by the appellant: —

1. The petition was signed by five creditors only, one of them being Zederman & Co. In the petition it is alleged that “the said Alvin B. Abbott is indebted to said firm of Zederman & Co. in the sum of $86.36, on account for goods, wares, and merchandise sold and delivered by said firm to said Abbott at his instance and request,” etc., and also that “ the said Alvin B. Abbott [382]is further indebted to said firm of Zederman & Co. in the sum of five dollars for moneys paid on March 11, 1884, by said firm to one-Miller, at the written request of said Abbott.”

The answer denied that appellant “ is or ever was indebted to the firm of Zederman & Co. in the sum of $86.36, or in any sum on an account for goods, wares, or merchandise sold or delivered by said firm to him, or for any other cause or thing.” And it also denied that “he is indebted to said Zederman & Co. in the sum of five dollars, or in any sum whatsoever for money paid by said firm to-Miller, or to any other person, at the written request of said Abbott, or otherwise.”

The court found that Abbott was, on October 13,1884, the time when the proceeding was commenced, and still is, indebted to Zederman & Co. “in a certain sum of money, to wit, $91.36, and that said firm of Zederman & Co. wTas, on October 13, 1884, and still is, a creditor of said Alvin B. Abbott.”

It is claimed for the appellant that the finding is insufficient because it does not appear from it that the indebtedness arose in the manner stated in the petition. But we think the finding can be sustained. The real question at issue was as to whether or not Zederman & Co. were creditors of Abbott, and this as an ultimate fact is clearly found against him. Besides, the amount of the indebtedness is named, and it exactly agrees with the aggregate of the sums named in the petition. The finding seems to have been intended to cover the whole issue, and we think it substantially does so. And as said in McKinney v. Smith, 21 Cal. 385, “ it is not requisite to order a new trial for the purpose of having the lan-. guage of the finding made more exact, when it is sufficiently distinct as to the subject-matter of the action.”