"If a bankrupt shall have given a preference within four months before the filing of a petition, . . . and the person receiving it, or to be benefited thereby, . . . shall have had reasonable cause to believe that it was intended thereby to give a preference, it shall be voidable by the trustee, and he may recover the property or its value from such person." B'k'cy Act of 1898, s. 60b. "A person shall be deemed to have given a preference if, being insolvent, he has . . . made a transfer of any of his property, and the effect of the enforcement of such . . . transfer will be to enable any one of his creditors to obtain a greater percentage of his debt than any other of such creditors of the same class." Ib., s. 60a. "`Transfer' shall include the sale and every other and different mode of disposing of or parting with property, or the possession of property, absolutely or conditionally, as a payment, pledge, mortgage, gift, or security." Ib., s. 1., cl. 25.
So far as it is a question of fact, the superior court has found that "the orders in question were preferences within the meaning of the bankruptcy act." Of the correctness of this conclusion, so far as it involves any question of law, there can be no doubt, in view of the express finding "that the Sugdens had reasonable cause to believe that Seward intended thereby to give them such a preference over other creditors, and that they, knowing Seward to be insolvent, took the orders to secure themselves," and in view of the further manifest fact that the Sugdens would be thereby enabled to obtain a greater percentage of their debt than other creditors of the same class. B'k'cy Act, ss. 60a, 60b. It follows that the orders were voidable by the trustee, and that judgment was properly ordered for the defendants in the suits at law and for the plaintiff trustee in the bill in equity (Ib., s. 60b; Pirie v. Company,182 U.S. 438; Landry v. Andrews, 6 Am. B'k'cy Rep. 281), unless error was committed in the proceedings. The only errors alleged are: (1) That subject to the Sugdens' exception the defendants in the suits at law were permitted to show by parol that they accepted the orders unconditionally by mistake; (2) that the plaintiff in the bill in equity was permitted to show in the same way that Cowan was not in fact a partner with Seward and had no interest in the contract with either Hall, Langdon, or Nickerson.
As to the first exception, it is only necessary to say that it was wholly immaterial to the Sugdens whether the orders were accepted conditionally or unconditionally, — for a greater or less sum, — since, as already shown, the orders were entirely without effect as against the plaintiff trustee. *Page 277
The second exception discloses no error. As trustee for the individual creditors of Seward, it was the duty of Marden to gather in all the individual assets properly belonging to the bankrupt estate of Seward. He was not bound to assume that credits nominally partnership were so in truth. If otherwise in fact, it was not only his right but his duty to show it; and parol evidence was clearly admissible for this purpose, certainly as between himself and the Sugdens, who, it is found, knew that the partnership existed only in name, and contracted relying solely upon the credit of Seward. Coll. B'k'cy 253, 254; 2 Gr. Ev., ss. 279, 478; 1 Ch. Pl. 13, 14; Par. Part. 130; 15 Enc. Pl. Pr. 929, 930; 17 Am. Eng. Enc. Law 912; Hersom v. Henderson, 23 N.H. 498, 504; Edgerly v. Emerson,23 N.H. 555; Furbush v. Goodwin, 25 N.H. 425, 446; Bromley v. Elliot,38 N.H. 287, 303; Hatch v. Wood, 43 N.H. 633; Wilson v. Sullivan,58 N.H. 260, 263; Charman v. Henshaw, 15 Gray 293; Ferguson v. King, 5 La. An. 642; Teed v. Elworthy, 14 East 210.
Exceptions overruled.
All concurred.