The opinion of the court was delivered by: DAWSON
This action, tried by the Court without a jury, is one by Elmer Fried, as Trustee in Bankruptcy of International Distributing Export Co., Inc. (hereinafter referred to as I.D.E.). The plaintiff alleges three causes of action:
(1) To recover $ 11,500, the par value of 115 shares of preferred stock of I.D.E. issued to the defendant on January 2, 1950;
(2) To recover the sum of $ 7,144.96, representing dividends paid to the defendant on the preferred stock of I.D.E. at a time when said corporation was insolvent, and
(3) To recover the sum of $ 2,325, paid to the defendant without consideration at a time when the corporation was insolvent.
In the original complaint the plaintiff also sued for $ 1,700, the par value of 17 shares of stock issued to the defendant on October 31, 1953. As a result of the evidence adduced at the trial the plaintiff has withdrawn his claim with respect to the said 17 shares of stock and limited his claim with respect to the alleged unpaid-for stock to the sum of $ 11,500.
Preceding the trial a pre-trial conference was held and the issues to be tried were defined by the Court was follows:
(1) Whether the defendant purchased from the bankrupt corporation, before it went into bankruptcy, 115 shares of stock, plus 17 shares of stock.
(2) Whether the defendant paid for that stock.
(3) Whether the defendant received dividends on that stock in the total sum of $ 1,744.96.
(4) Whether at the time the dividends were paid to the defendant the corporation was insolvent, or its capital impaired, so that there were no funds available for the legal declaration of dividends.
(5) Whether the bankrupt corporation, before it went into bankruptcy, made payment to the defendant in the sum of $ 2,325 in excess of any amount of indebtedness owing by it to the defendant; and whether the defendant has repaid that money to the bankrupt.
In the course of the pre-trial conference the defendant conceded that he accepted the 115 shares of stock intending to pay for them in full, and stated it was his present claim that he did pay in full for the stock.
The defendant admitted that he received the dividends on the stock, as set forth in the complaint. He denied that the dividends were paid at a time when the corporation was insolvent or when its capital was impaired.
The findings of fact and conclusions of law of the Court, following the trial, on the issues hereinabove ...