Before Hincks and Moore, Circuit Judges, and Brennan, District Judge.*fn*
This appeal challenges the validity of a judgment of the District Court for the Southern District of New York which dismissed the claim of the trustee against The Peoples Bank of Haverstraw, hereinafter referred to as the "bank."
The complaint advanced ten separate claims against individual and corporate defendants. These claims, all arising out of the tangled background of the business affairs of the bankrupt, were tried to the court and money judgments were awarded against the Capitol Piece Dye Works, Inc., hereinafter referred to as "Capitol," and the individual defendants. The appeals taken from such judgments were withdrawn and we are not concerned therewith. The factual background applicable to the sole judgment under attack here will be briefly set forth.
The General Textile Processors, the bankrupt, was incorporated in New Jersey June 1, 1956. It came into being as the result of the amalgamation of seven corporations operating their separate plants in New York and New Jersey. These corporations were faced with financial loss in their separate businesses due to economic conditions in the business of finishing and dyeing of textiles in which they were engaged.
Capitol was one of the participating companies in forming the bankrupt as above. It operated a plant near Garnersville, N. Y. which was leased to the bankrupt in accordance with the agreement of amalgamation. Samuel Koenig was the president of Capitol and was also the treasurer and a director of the bankrupt.
On September 13, 1956, the bankrupt opened on account in the Peoples Bank of Haverstraw. The account was used primarily to meet the payroll of the Capitol plant. The arrangements for said account were made by Koenig who had been a valued customer of the bank for several years. Any one of four officers of the bankrupt, including Koenig, was authorized by a so-called signature card to sign checks drawn upon said account.
The business operations of the bankrupt were financially unsuccessful. The chronological history pertinent here may be summarized as follows. On September 21, 1956, the bankrupt was insolvent; on November 2, 1956 it discontinued business; on November 5, 1956, an application for an equity receiver of the bankrupt was made to a New Jersey court; an order was filed appointing a receiver on November 7, 1956 and on the same day, an involuntary petition in bankruptcy was filed against the bankrupt in the United States District Court for New Jersey; on November 26, 1956, an order of adjudication was entered; on March 19, 1957, the plaintiff was appointed trustee.
The above facts afford a background for an understanding of the transactions which are the bases of the trustee's claim involved here, the circumstances of which are summarized below.
On November 5, 1956, the balance in the bankrupt's account in the bank was $10,660.81. On the morning of the above date, Koenig deposited in said account a check payable to the bankrupt in the amount of $9500. After ascertaining, through the assistance of bank personnel, that the check was good, Koenig then drew a check to his own order for the total balance in the account in the amount of $20,160.81. The check was immediately deposited in the bank in a new account entitled "S. Koenig, Special for Payroll." Koenig was the only person authorized to make withdrawals from said account. It was under his sole control. In the afternoon of the same day, Koenig submitted to the bankrupt his written resignation as treasurer.
Thereafter and intermittently from November 7, 1956 to November 26, 1956, checks drawn upon the bankrupt's account and signed by Koenig were presented to the bank. For the most part, they represented payroll payments for the employees at the Garnersville plant. Some of said checks were drawn prior to November 5, 1956 and signed in behalf of the bankrupt by S. Koenig. Those checks, drawn after that date, were signed in like manner. Upon presentation of such checks, the bank received the oral authorization of Koenig to pay same from the "S. Koenig, Special for Payroll" account. On November 26, 1956, prior to the time when the bank was informed that an adjudication had been made and a receiver had been appointed for the bankrupt, all of the funds in said account had been withdrawn with the exception of something less than $2.00.
The trustee's action appears to be based upon alternative contentions that the bank's action or inaction in the above transactions constitute a misapplication of the bankrupt's funds, a negligent and fraudulent transfer thereof and a breach of the bank's obligation to its depositor - all of which were put in issue in the trial court.
After taking evidence, which consisted in part of the oral testimony of Koenig and an officer of the bank who possessed knowledge of the facts relative to the transfer of the account and the subsequent handling thereof, the court made its decision which failed to make a specific finding as to wrongful conduct on the part of the bank as a basis of its liability.
The court found that the bank had no knowledge of the financial condition of the bankrupt during the crucial period involved. "It had no knowledge of bankruptcy, insolvency, the appointment of a receiver or financial failure." The obligation of the bank in the matter of the handling of corporate funds was briefly discussed. The court concluded that in any event no loss was sustained by the bankrupt corporation and therefore no liability followed. This conclusion is based upon an assumption rather than a finding that the bank breached its obligation to the bankrupt by permitting the transfer of November 5th.
Since the evidence is substantially undisputed, we are in as good a position as the trial court to make the necessary evaluation thereof as a basis for the decision of the questions posed. Orvis v. Higgins, 2 Cir., 180 F.2d 537.
A determination of the nature and effect of the transaction of November 5, 1956 is essential in this controversy. It is noted that the trial court did not find that the transfer of the account on the above day to "S. Koenig, Special for Payroll" amounted to a conversion thereof. The background of the transaction would seem to lend force to the conclusion that the transaction was one of form rather than of substance. Koenig knew that one of the officers of the bankrupt, who had authority to draw checks upon the bankrupt's account involved here, had withdrawn substantial sums of money from another of the bankrupt's bank accounts at Paterson, N. J. Koenig consulted his attorney as to what he could do, in the event of bankruptcy, to insure that the moneys in the appellee's bank could be protected so that employees would receive their pay. An excerpt from his testimony follows:
"He says, 'They can attach the account right away and the people will not get their pay.'
"I says, 'What can I do?' I says, 'Can I withdraw that money to save it for the people?'
"He says, 'Yes,' and he gave me the suggestion what to do."
Koenig further testifies without contradiction that he told the bank officer who attended to the details of the transaction that all payrolls as they usually come from the bankrupt should be paid from the new account. It is also noted that the action brought against Koenig was based upon his creation of illegal preferences in the matter of the funds involved here rather than a conversion thereof and that the new account was in fact used in payment of compensation to employees of the bankrupt. All of the above dictates a finding that the transaction of November 5, 1956 did not divest the bankrupt from the ownership of the funds in the bank at that time and the same constituted a change of name in the account rather than a transfer of the title thereto,
Upon the above finding, it follows that the ownership of the account remained in the bankrupt until November 7, 1956 when the petition in bankruptcy was filed and the bankrupt incurred no loss on account of the cashing of checks in the amount of $7,497.14, drawn prior to the filing of the petition in bankruptcy and presented to the bank between November 5, 1956 and November 7, 1956. Preference may have been made, but this action is not based upon such a claim and the bank is not liable therefor when it honors depositor's checks without notice of his insolvency. Cunningham v. Merchants Nat. Bk., 1 Cir., 4 F.2d 25, 41 A.L.R. 529.
The above holding does not dispose of the whole controversy but the problem becomes one of applying the pertinent provisions of the Bankruptcy Act.
Section 70 of the Act, 11 U.S.C.A. § 110, vests the trustee with the title to the bankrupt's assets as of the date of the filing of the petition, which would be November 7, 1956. It further provides that no transfer by or in behalf of the bankrupt shall thereafter be valid unless it comes within the protective provisions of the section. The trustee contends that the payment by the bank of the checks ...