United States Court of Claims (dissenting):
I agree with the District Court that the appellant (defendant below), or its authorized agents, on the date of the cashing of the two checks in issue, had *855reasonable cause to believe that the bankrupt, Billie Sol Estes, was insolvent.
When the established facts and circumstances of record are laid alongside they substantially support the findings and conclusions that were reached by the trial court.1
The appellant (sometimes referred to as the “company”) is an experienced business concern. It had operated for many years and had been selling fertilizer to Billie Sol Estes since 1956 or 1957. By June 3, 1959, Estes had fallen behind with his payments to the extent of $145,000. On that date, because of difficulties in collecting the account, the appellant shut off his credit and began pressing for collection of the amount already due.
During all this time W. Q. Burns was appellant’s area manager in the heart of Estes’ operations. Burns knew that Estes had been slow in payment for years. The company began to take steps for collection. It knew even in mid-1959 that Estes’ assets were heavily mortgaged and that he was in a tight cash position. Burns had instructions from his home office to “keep pressure on him continually and to demand regular payments.”
On June 1, 1958, the company secured three notes for $50,000 each covering the account to that time. Adequate payments were not forthcoming. It began to threaten “to take steps for collection” as early as May 1959. A number of letters were written. It was difficult during the next few months to get answers or even to get Estes by phone. In late 1959 the company was successful in securing 12 postdated monthly checks for $5,000 each. These checks were secured by pressing and threatening suit. The company was a good collector. By the end of 1960 the account had been considerably reduced to about $78,000. The company then secured 12 additional postdated monthly checks covering the balance of the debt with interest.
It is doubtful whether the company really contemplated suit during the period of collection. It was fearful that some of the other creditors would file suit and “throw Estes into bankruptcy.” That would have destroyed the chance to collect the remaining checks and would have made it necessary to list them as claims to be paid on a proportionate basis with the general creditors of Estes. A suit by the appellant would have had the same effect. That they did not want. The company preferred to nurse the situation along and get all the cash it could while the ship was still afloat.
W. Q. Burns had been with the company for 35 years. He had handled credits for the company or supervised the handling of credits for more than 20 years. He was wise in that field. He was on the ground and was watching everything. He was no novice. With the exception of the $8,000, he collected the entire amount with interest. He put it all into what amounted to a sealed pouch which could not be reached because it was collected more than four months prior to the filing of the bankruptcy petition. The $8,000 was also collected but it was collected within the four months’ period. The latter amount is involved in this suit as an alleged preference.
It is true Mr. Burns testified that he did not know at the time the last sum was collected that Mr. Estes was insolvent. But the admissions in his testimony and statements in his several previous letters, his skill in pressing for collection while carefully avoiding suit and many other facts and circumstances show that he had reasonable cause to believe Estes was insolvent.2 He had the *856last repoi’t of Dun & Bradstreet which stated that the conditions were so confused they could not make any determination as to Estes’ financial status.
Burns requested a statement or financial report from Billie Sol Estes. He did not receive it directly but it was furnished to Dun & Bradstreet and reached appellant in due course of business in late 1960. That statement shows that in one of the main counties of operation Estes had listed certain properties which were stated as subject to mortgages totalling $3,000,000. The mortgages however totalled $10,000,000. The items listed showed that amount but the sum was totalled in the report as only $3,000,000. A mere glance at these figures would have shown the manifest error. Perhaps Burns did not look at them.
Perhaps he did not want to see them. But can a man be permitted to close his eyes to the sea of facts all around him? He might not have known. But to my mind the facts show clearly that he had reason to believe or at least if he had opened his eyes there were sufficient facts available to him to put any reasonable man on inquiry. These facts certainly would have revealed the true condition. Marks v. Goodyear Rubber Sundries, 238 F.2d 533, 62 A.L.R.2d 770 (2 Cir. 1956); Security-First Nat. Bank of Los Angeles v. Quittner, 176 F.2d 997 (9 Cir. 1949); Canright v. General Finance Corp., 35 F.Supp. 841 (D.C. E.D.Ill.1940), aff’d 123 F.2d 98 (7 Cir. 1941); 4 Remington on Bankruptcy 334, Sec. 1708.1 (Rev.Ed.1957). There is no indication anywhere in the record that the representative of any other creditor was closer to the base of operations than the appellant, or was in any better position to know the true facts.
These facts and circumstances do not sink to the level of a mere suspicion, but rise to the dignity of knowledgeable facts that were readily available.
I cannot say that I blame Mr. Burns. It is as natural for a man to look after his own interests as it is for the sparks to fly upward. As it begins to appear that a business is becoming shaky creditors begin to rush to collect. Each tries to get as much as he can as quickly as he can. It is somewhat like one United States Senator remarked when he was being chided for voting against his party’s policy on a rather important question: “When one is on a leaking vessel in a storm and the water reaches the main deck, it is every man for himself.”
This is merely a contest between creditors. The Federal Government steps into any wild scramble and says that no creditor may secure a preference over other creditors within four months previous to the actual filing of a bankruptcy proceeding, if he knew or had reasonable cause to believe that the debtor at the time of the preference was insolvent. This is a just law, a fair law and undertakes to treat all creditors alike. Some of the creditors were less fortunate in their collections. The appellant collected most of the debt through skilled operation. Probably it had a more alert repre*857sentative on the job. This is not a criticism, merely a comment.
In my judgment the record shows that appellant, at the time the last two checks were cashed, had reasonable cause to believe that Estes was insolvent.
I would affirm the decision of the District Court, and I therefore dissent.
Sitting by designation of the Chief Justice.
. Mayo v. Pioneer Bank & Trust Co., 297 F.2d 392 (5 Cir. 1961).
. On February 22, 1960, Mr. Burns had written one of the company officials a letter from which I quote:
“I took the position * * * that if we had notes of farmers that were due to him [Estes], in our possession and assigned to us, we would be much better off in case anything happened to him and his business blew up. * * *
“With the $10,000 payment on November 10 and $5,000 on January 10 and February 10, we are now $20,000 better off than we were. We * * * will not *856sell him again under any condition. * * I still believe he will work out and that we will get all of our money eventually unless someone sues him for a sizable amount and throws him into bankruptcy. So far he has been able to avoid that. But the fear that that might happen is the reason we have requested the collateral notes so that we would have at least something to fall back on in the event a suit was filed or that he went into bankruptcy for other reasons.” [Exhibit PX-8.]
This was written more than 2 years before bankruptcy, which indicates a full knowledge of the situation, or at least a realization that conditions were very uncertain — and a cool determination to sit tight and collect all the remaining eleven postdated monthly checks, if possible. On February 24, 1960, Burns received a reply from an official of the company. I quote:
“ * * * I believe, as you do, that we will eventually collect our money provided there is no bankruptcy brought about by a suit for a sizeable amount or other reasons. In order to improve our position in case of such an eventuality, I strongly recommend that you exert all possible pressure on Mr. Estes * * [Exhibit PX-9.]