South Branch Lumber Company v. Ott/Opinion of the Court

The single question in this case is as to the validity of the assignment. Its invalidity is claimed under section 2115 of the Code of Iowa: 'No general assignment by an insolvent, or in contemplation of insolvency, for the benefit of creditors, shall be valid unless it be made for the benefit of all his creditors in proportion to the amount of their respective claims.' Rev.Code. p. 569. This statute has been in force since 1851. Code 1851, § 977; Revision 1860, § 1826. The assignment in question, standing by itself, presents no ground of challenge. It purports to be a general assignment, is for the benefit of all creditors, and contains no preferences; but the contention of plaintiff is that nearly contemporaneously with it were executed by Ott, the assignor, certain other instruments, which are to be taken as part of the one transaction, and by which preferences were given. The object of the statute was to secure equality among creditors, an object which certainly has the merit of equity. Curiously enough, counsel for plaintiff insists that this equity misled the circuit court, and protests against its like infiuence upon our judgment, while strenuously insisting upon such a construction of the transaction as will enable his client to obtain that preference which it was the purpose of the statute to prevent. He says: 'Somestress is laid by the learned judge who decided this case in the court below upon the inequitable result of holding the Ott assignment void, as it would give to the attachment creditors the entire estate. Undoubtedly it would be much more satisfactory to a court of equity had the law provided that the preferences and not the assignment should be void. The fact that the penalty imposed by the legislature was a harsh one, and operated unjustly upon the right of others, seems to have been something of an obstacle in the way in determining Ott's intent.' But if we apply the letter alone of the statute, then he has no cause of complaint; for the assignment, standing by itself, is without preferences, and only an assignment with preferences is denounced. Only by going beyond the letter, and, in obedience to the spirit, inquiring whether antecedent instruments were not so related to the assignment as fairly to be taken as parts thereof, and constituting with it but one transaction, has the plaintiff any standing in court. But shall we ignore the letter and heed the spirit to give a party a standing in court, and then ignore the spirit and heed only the letter in the further consideration of the case?

The rights of the parties are determined by this local statute, and the construction placed thereon by the supreme court of the state is decisive: 'The question of the construction and effect of a statute of a state, regulating assignments for the benefit of creditors, is a question upon which the decisions of the highest court of the state, establishing a rule of property, are of controlling authority in the courts of the United States. Brashear v. West, 7 Pet. 608, 615; Allen v. Massey, 17 Wall. 351; Lloyd v. Fulton, 91 U.S. 479, 485; Sumner v. Hicks, 2 Black, 532, 534; Jaffray v. McGehee. 107 U.S. 361, 365, 2 Sup. Ct. Rep. 367; Peters v. Bain, 133 U.S. 670, 686, 10 Sup. Ct. Rep. 354; Randolph's Ex'r v. Quidnick Co., 135 U.S. 457, 10 Sup. Ct. Rep. 655.' Union Bank of Chicago v. Kansas City Bank, 136 U.S. 223, 235, 10 Sup. Ct. Rep. 1013.

This statute, which, as we have seen, has been in force in the state of Iowa for 30 years, has been repeatedly before its highest court. In the margin may be found a list of cases decided by that court in which it has been the subject of construction. These propositions seem to be established:

First, this section does not prevent partial assignments with preferences, or sales or mortgages of any or all of the party's property in payment of or security for indebtedness. Its operation is limited to the matter of general assignments, and does not destroy that jus disponendi which is an incident to title. Cowles v. Ricketts, 1 Iowa, 582; Fromme v. Jones, 13 Iowa, 474; Lampson v. Arnold, 19 Iowa, 479, 486. In this latter case the court enters into a full consideration of the import of the statute, and says: 'This statute, it will be observed, does not limit or affect the right of an insolvent debtor, or one contemplating insolvency, or, indeed, any other, to sell or mortgage a part or all of his property to one or more of his many creditors, in payment or security of a particular debt or debts. And this is true, although such sale or mortgage may, practically, defeat all other creditors than the grantee from collecting their demands. Nor does the statute prohibit or interfere with the right of any debtor, as it existed prior to the statute, to make a partial assignment. In other words, the statute does not, expressly or by implication, extend any further, or apply to any instrument or conveyance, other than to a general assignment. Bock v. Perkins, 139 U.S. 628, 641, 11 Sup. Ct. Rep. 677. And therefore it is still competent for any debtor to pay a part of his creditors in full; to secure another part by mortgage or deed of trust upon a part of his property; to make a partial assignment of still other property for the benefit of certain other creditors, with or without preference, and afterwards to make a general assignment. The statute simply provides that such general assignment shall not be valid, unless it is made for the benefit of all the creditors pro rata.'

Second, several instruments executed by a debtor, at about the same time, may be considered as parts of one transaction, and in law forming but one instrument; and if, as thus construed, they have the effect of a general assignment with preferences, they are within the denunciation of the statute. Burrows v. Lehndorff, 8 Iowa, 96; Cole v. Dealham, 13 Iowa, 551; Van Patten v. Burr, 52 Iowa, 518, 3 N. W. Rep. 524.

And, third, that although several instruments may be executed by the debtor at about the same time, they do not necessarily create one transaction or are to be considered as one instrument; and whether they do or not, and whether they come within the denunciation of the statute, depend upon the character of the instruments, the circumstances of the case, and the intent of the parties. Lampson v. Arnold, 19 Iowa, 479; Van Patten v. Burr, 55 Iowa, 224, 7 N. W. Rep. 522; Perry v. Vezina, 63 Iowa, 25, 18 N. W. Rep. 657; Gage v. Parry, 69 Iowa, 605, 29 N. W. Rep. 822; Garrett v. Plow Co., 70 Iowa, 697, 29 N. W. Rep. 395; Bolles v. Creighton, 73 Iowa, 199, 34 N. W. Rep. 815; Loomis v. Stewart, 75 Iowa, 387, 39 N. W. Rep. 660.

The case of Van Patten v. Burr, in 52 and 55 Iowa, and 3 and 7 N. W. Rep., is instructive. In that case the debtor, being insolvent, had executed two chattel mortgages and an assignment, all bearing date November 30, 1878. When first presented to the supreme court it came on demurrer to the petition, in which it was alleged that the debtor, 'in contemplation of insolvency, and being then insolvent, made, executed, and delivered in writing a general assignment of his property for the benefit of his creditors, contained in three instruments executed by him,' etc.; and also 'that said instruments were intended and do constitute as a whole a general assignment of his property for the benefit of creditors.' And it was held, under such allegations, that the three instruments were to be treated as one, and together making a general assignment with preferences. The case went back for trial, and upon the testimony it appeared that one of the mortgages was accepted by the mortgagee without any knowledge of the contemplated assignment; and in 55 lowa, and 7 N. W. Rep., it was held that such mortgage was good.

In Perry v. Vezina, 63 Iowa, 25, 18 N. W. Rep. 657, it appeared that a chattel mortgage was executed about three hours before a general assignment; but as it was agreed that, when the mortgage was made, the debtor did not contemplate making the assignment, the latter was held valid. The court said: 'But, to justify a court in finding that a mortgage may be taken in connection with some other instrument as constituting an assignment, it should appear that the mortgagor, at the time he made the mortgage, had the intention to make an assignment.' Similar expressions are found in others of the cases cited. Obviously, it is a fair inference from these decisions that, as well said by Judge LOVE in deciding this case, 'the intention of the assignor must be the true and guiding principle of decision.' With what intent did Ott in this case execute the various instruments prior to the general assignment? Was he intending a general assignment, and seeking to evade the statute, and to give preferences by other instruments? or was he, finding himself involved and likely to be closed out by some of his creditors, simply preferring some, uncertain as to what disposition he should make of the balance of his property after they had been secured?

Upon the basis of these rulings interpreting the scope and effect of this statute, we perceive no error in the conclusions of the circuit court. Quite an amount of testimony was offered, for the purpose of showing that the debt of the appellant was fraudulently contracted by Ott. The assumption seems to be that if this be proved it follows that the assignment was made in violation of the statute, and void; but there is no sequence in these propositions. Even if it were established beyond doubt that Ott, with deliberate purpose to defraud the appellant, contracted this debt, this would not determine the scope or effect of his assignment. It were as reasonable to suppose that, having made the personal gain he designed, his interest ceased, and that he never contemplated an assignment until the very moment of its execution. Indeed, if he were guilty of fraud in the first instance, it would imply a state of mind indifferent to all results after the primary purpose of his own profit had been secured.

It would be unjust, however, to the parties to leave this statement with the inference which might follow, that we consider it established that the debt was fraudulently contracted. The basis of the contention in this respect is in the inaccurate statements furnished by Ott to appellant in reference to his financial condition during the years prior to this assignment. Obviously they were so as to values; but, as he named the property, his overestimate of value is not to be adjudged necessarily fraudulent. We note one matter upon which stress is laid,-a quarry, valued by him at $14,000. Notwithstanding the testimony as to its utter worthlessness, yet he had invested large sums in trying to develop and work it, and was not without hopes of ultimately realizing much from it. He named this quarry as a part of his assets, and gave his estimate of its value. If the lumber company desired further information as to its location, its condition, and its prospects, it could have asked of him, or made itself an independent investigation. If it was content with his statement, it must show not merely that he had overestimated, but, further, that he had fraudulently given the vaiue. He furnished to the lumber company the data for investigation, and, while caveat emptor is the rule as to the thing sold, caveat venditor is also the rule as to the pecuniary condition and solvency of the purchaser. Something more than overestimate of value on the purchaser's part is necessary before it can be said that on this account the debt was fraudulently contracted. A deliberate overestimate and an intention to defraud are essential.

But we do not care to tarry upon this feature of the case. The business relations between the lumber company and Ott had been running for a series of years. He had purchased from it to an amount exceeding $180,000. His business had averaged about $300,000 a year. His statements, while inaccurate and overestimated as to values, disclosed the property which he possessed, and enabled the lumber company to investigate. But, whatever may have been the character of the relations between the lumber company and him, the inquiry before us is limited to the assignment; and here five matters are referred to and claimed by the appellant to be so related to it as to be in fact part and parcel of it, and thus together constituting a general assignment with preferences, within the denunciation of the statute. Two of them are chattel mortgages, executed on the 20th day of February, 1886, more than two months before the assignment,-one to Charles Hill and the other to Addie Kloppenberg. That these were executed without any thought of an assignment is clear. At the time there was no threatened interference and no apparent danger of trouble to Ott in his business. The one to Hill was to secure him as an indorser. It is true that while executed on February 20th, and delivered to Hill, it was not recorded until the day before the assignment; and this failure to record was upon an agreement made by Hill with Ott for fear that such record would precipitate an attack upon the latter by his creditors. On this account it was adjudged void by the circuit court, a question which we cannot consider, as, the amount of the mortgage being less than $5,000, Hill could bring no appeal to this court. But this stipulated agreement not to record, while it amy have vitiated the mortgage, in no manner affected the assignment made long after, and for the reason that when the one was executed there was no thought or intent on the part of Ott of the other. The same may be said of the mortgage to Addie Kloppenberg. She was a minor, a girl of about 14 years of age, his granddaughter, of whose estate he had been appointed guardian, and whose moneys he had taken into his business. Security for these moneys he had been directed by the probate court, having charge of her estate, to give. Instead of real-estate security, he gave this chattel mortgage, and placed it in the hands of the attorney who was looking after the business of the estate, with a like suggestion not to record, and it was not in fact recorded until the day before the assignment. That he had this amount belonging to this minor in his possession is not questioned; that he gave the mortgage under the direction of the probate court is not disputed; and that he gave the same long before the closing out of his business was thought of is clear. Of course, it was not part of the assignment.

With respect to the three other matters, there is more of a question. It appears that on the 12th of April, on receipt of a statement of account, Francis Beidler, the representative of the appellant, came to Davenport to investigate the situation. The outcome of that investigation was not satisfactory. A demand was made for a reduction of the indebtedness. The plain import of the interview was that things could not continue as they had been. Two or three days before the assignment the bank with which Ott had been doing business for a series of years, and which had been discounting his drafts before acceptance, and which was at such time carrying about $11,000 of such drafts, intimated that it must have acceptances before discounting. His son, who was his principal salesman, his only traveling man, returned from one of his trips. While ordinarily selling from $18,000 to $20,000, his sales on that trip had practically amounted to nothing. Strikes in the south-west were significant of labor troubles, and shadowed the business outlook. With these accumulating facts, evidently Ott began to think that the end of his business career, at least so far as his present undertakings were concerned, was at hand. On the day before the assignment he gave to one Mueller, to whom he owed about $9,000, drafts on his customers for goods sold to the amount of $1,239.46. On the same day he gave to McClelland & Co., to apply on a debt of $900, a like draft to the amount of $660.80; and on the very morning of the assignment he sent a letter to George F. White, the agent of the railroad company, notifying him that he might hold four carloads of glass, then in the possession and on the tracks of the railroad company, as security for a balance of between eight and nine hundred dollars of freight due.

Now, these transactions were but shortly prior to the assignment. They were in a general sense contemporaneous with it. They took place when Ott was conscious of the impending danger of the closing out of his business, and they operated as preferences to these creditors. They were so nearly related in time to the assignment, and made under such circumstances, that if, in an action at law and under proper instructions, the question had been submitted to a jury whether they were made with a view to an assignment, and to evade the statute, and the verdict had been in the affirmative, it would be difficult to say that such verdict was not warranted by the testimony. All this may be-must be conceded; yet over against it are these matters: The positive testimony of Ott that when he gave these drafts to Mueller and McClelland he had not determined upon an assignment. He knew that he was in financial trouble, and considered himself under special obligations as to one at least of these debts. His purpose was simply payment, and that he had a right to make. He supposed he should have to stop business, but in what manner the close should be brought about, whether by the action of creditors or his own voluntary transfer, was undetermined. He was waiting and considering, and only decided upon an assignment on the morning of the 27th. If such was the fact, then, within the rules laid down by the supreme court of Iowa, these preferences are not to be taken as part and parcel of the assignment, or as vitiating it.

In reference to the letter from Ott to White, with respect to holding the four car-loads of glass as security for freights, it is clear that this was only putting in writing an agreement made long before. For the testimony of White and Ott both show, and to their testimony there is no contradiction, that White, months before, had again and again urged prompt payment of freights, and that Ott had agreed to always leave on the track goods enough to secure any amount of freight that might be due. The prior agreement, though oral, was valid; and the letter was not a new contract, giving them a preference, but only a written expression of that which had theretofore been agreed upon, and agreed upon when there was no thought of an assignment. This brings the transaction within the reasoning of this court in the case of Hauselt v. Harrison, 105 U.S. 401, in which, as against the claims of an assignee in bankruptcy, a transfer made immediately before the adjudication in bankruptcy was held to relate back and to carry into effect an agreement entered into long before, and therefore not to be vitiated by the bankruptcy proceedings.

Further, it may be stated, as sustaining the conclusions of the circuit court, that the payments made by Ott during the few days before and up to the very time of the assignment were not extraordinary, not differing from the usual course of his business in prior months. McClelland's and Mueller's were only partial payments, and made in consequence of repeated requests, so that he was not hastening unnecessarily to pay or secure them. And, further, though there was a mortgage on his homestead which he might have paid off, though there was money in the bank which he might have withdrawn and pocketed, he did neither; nor did he act as though intending an assignment, or seeking to benefit himself as much as possible prior thereto. His conduct seems to have been in the utmost good faith; and while these drafts did operate to secure these creditors a portion of their claims, yet they were not given under such circumstances that the court must conclude that they were in anticipation of an assignment, or find that he was guilty of untruth in his testimony that when he made them he had not decided what to do. As intimated, the testimony in reference to these last matters does not leave the case free from doubt, yet we are of the opinion that the circuit court rightly read it, and properly held that it was not shown that at the date of those instruments Ott had determined upon an assignment. They were therefore valid as in the exercise by him of his undoubted jus disponendi; and the assignment subsequently determined upon and subsequently made was without preferences, was not void under the statute of Iowa, but was a valid general assignment, transferring all of the property then in his possession for the benefit of all his creditors.

The decree will be affirmed.