In re Dyer v. Bradley

Belcher, C. This is an appeal from an order granting the respondent, Joseph P. Dyer, a discharge from his debts, under the Insolvent Act of 1880.

It appears from the record that Dyer filed his petition in insolvency on the third day of August, 1888, and was adjudged to be an insolvent debtor. Subsequently the appellant, Richard Bradley, proved his debt against the insolvent, amounting to $5,928.50. At the proper time thereafter the respondent applied to the court by petition for a discharge from his debts. The appellant objected to his discharge, and filed specifications, in writing, of the grounds of his opposition. These specifications were, in substance, as follows: 1. ThatonDecem6, 1886, the respondent paid to the Nevada Bank of San Francisco, one of his creditors, a large sum of money, not less than seventy thousand dollars, with the intent to prefer the bank as a creditor, and to pay it in full, and did, in paying the saido money to said bank, prefer the same as a creditor, and pay it in full, and did thereby defraud his other creditors; 2. That on the second day of December, 1886, the respondent, knowing that he was insolvent and unable to pay his just debts, paid to M. C. Blake, a creditor, a large sum of money, not less than thirty-five thousand dollars, the same being greatly in excess of any amount due the said Blake from the respondent, and that such payment was made with the intent to prefer him as a creditor, and to pay him in full, and the respondent, in paying this money to Blake, did prefer him as a creditor, and pay him in excess of the full amount due him, and did thereby defraud his other creditors by reason of such preference; 3. That the relationship existing between the appellant and respondent was a fiduciary one, and the indebtedness of respondent to appellant was created by reason of such fiduciary relationship, and in this way: during the year 1866 the respondent was a stock-broker, engaged in buying, selling, and holding stocks for his patrons; the ap[559]pellant, reposing special confidence and trust in the honesty and solvency of respondent, deposited with him divers mining stocks of the value of $5,928.50, to be kept and taken care of for appellant, and to be subject only to his order; these stocks the respondent afterwards sold and converted to his own use, without the knowledge, consent, or order of appellant; 4. That on the third day of December, 1886, the respondent, well knowing his insolvency, but contriving and wishing to defraud appellant, in answer to inquiries, assured appellant that he was perfectly solvent, and that the property intrusted to him by appellant as aforesaid was perfectly safe and secure, and that by leaving the same with him, the appellant could and would run no risk of losing the same; that appellant, relying on said assurances, took no steps to secure and recover his property as he otherwise could and would have done, and that the indebtedness of respondent to appellant was created by the loss of said property, and that by reason of said deceit appellant was defrauded; 5. That the debt owing by respondent to appellant is a fraudulent debt, and was fraudulently created; that is to say, prior to December 3, 1886, respondent was a stock-broker, and was intrusted by appellant with certain mining stocks of the value of $5,928.50, which he wrongfully and fraudulently converted to his own use, and by reason of such conversion became indebted to appellant for the value thereof.