AMERICAN EXCH. BANK OF MILWAUKEE, WIS., v. GOETZ. In re PROGRESSIVE METAL & REFINING COMPANY, 283 F. 900

PAGE, Circuit Judge (after stating the facts as above). There are three questions.for consideration:

(1) Did appellant know or have reason to believe that bankrupt,was insolvent?

(2) Had appellant the right to file its claim, freed from the condition imposed?

(3) What is the proper basis of recovery? R We agree with the conclusion of the District Court upon the first question, but find no actual fraud is shown. 2. In Page v. Rogers, 211 U. S. 581, 29 Sup. Ct. 162, 53 L. Ed. 332, the court'said: “Now that this litigation has come to an end, and the defendant has been compelled to surrender the preference which he received, he is entitled to prove his claim and to receive a dividend on it upon an equality with other creditors. Keppel v. Tiffin Savings Bank, 197 U.

S. 356.” We are of opinion that the above is a proper practice in equity, and that appellant should be permitted to file its claim and receive dividends as .there indicated, freed from the imposed condition. 3. This is a suit in equity, brought, after a demand and nine months after the alleged preference, not for a return, but for the value, of the property which the bill alleges had been transferred in payment of appellant’s debt of $11,500.

Even after the answer, sustained by the uncontradicted evidence, disclosed that the property transferred was taken, not in payment, but as collateral, appellee persisted in his demand on the theory alleged in the bill. The question whether the transfer was as collateral to or in payment of the debt was material, because, if in payment, and the trustee was defeated, appellant could file no claim in bankruptcy. On the other hand, if taken as collateral and the trustee was defeated, appellant would have the right, after the exhaustion of its collateral, to have the remainder of its claim allowed.

It was also material because, as the owner of property taken in payment, appellant could use or dispose of it at will. As collateral, with no collateral agreement or contract of sale, appellant had no greater right than to hold as collateral, or sell after due notice, except that it could have collected and applied money from the assigned accounts. Appellant always recognized the bankrupt’s right to redeem, and there was no conversion, or attempted conversion, as against that right, because there was never any demand that would bring in question any such right, either before or by the bringing of the suit.

It is claimed, and, so far as the evidence shows, it is probably true, that there was a great depreciation in the value of brass between the time it was given as collateral and the time of the demand nine months afterwards. This is not a case where the property was taken in payment, or was taken and sold under some illegal pledge or agreement and applied to the pledgee’s account. On the contrary, the main part of the collateral remains undisposed of, and may be returned in kind.

It would be unconscionable and unjust to permit the trustee to stand by for nine months and make no demand, and when he did make one to make it and prosecute his suit upon an erroneous theory. It would likewise be inequitable and unjust to charge appellant with any depreciation in the value of the brass, which appears to have taken place long before any demand and during a time when appellant had no right to sell the brass. We are of opinion that the bill should be amended so as to make its allegations conform to the proofs, and that under the authority of Off v. Hakes, 142 Fed. 364, 73 C. C.

A. 464, a decree should be entered directing a return of the brass transferred as collateral by the bankrupt Payment of the amount of $757.74, collected on the small account, together with the legal rate of interest from the time of its collection, should also be decreed. The account of $1,201.64 must be further considered. There is no evidence as to the value of that account. The measure of damages fo.r the wrongful conversion of a note or an account is the actual value of the note or account at the time of its conversion, and not its face value at that time. 38 Cyc. 2097; Turner v. Retter, 58.

Ill. 264; Griggs v. Day, 136 N. Y. 152, 32 N. E. 612, 18 L. R. A. 120, 32 Am. St. Rep. 704; Logan County Bk. v. Townsend, 139 U. S. 67, 77, 11 Sup. Ct. 496, 35 L. Ed. 107.

It appears that, after the commencement of this suit, an arrangement was made whereby the brass out of the sale of which that account arose had been shipped back and placed on warehouse receipt in the name of appellant, but the record is silent on all of the following matters, viz.: The date when the account fell due, the value of the account, the solvency of the purchaser when the account became due, whether there was any release by agreement of the parties or by operation of law upon the return of the brass; and^ as to any fact or matter surrounding the return of the brass.

Proceeding upon his theory that the transfers were taken in payment, appellee remained silent when he learned of the return of the brass, and neither affirmed nor repudiated the transaction. When appellant undertook to deal with the account, it was its duty to use diligence to collect it. If anything other than cash or less than the face was taken in settlement and discharge of the account, it would be liable for the value of the account at the time of settlement, regardless of what it actually received.

It was the duty of the trustee to repudiate or affirm the transaction by which the brass w^s returned within a reasonable time after knowledge of it came to his'notice.

Evidence should be taken upon the question of the settlement, and if it appears that there was no discharge of the account upon the return of the brass, or that the return of the brass was not prejudicial to the rights of the trustee, and was of the value, when taken, equal to the then value of the account, and the transaction was not repudiated within a reasonable time by the trustee, then the court should decree a return of the brass to the trastee; otherwise the court should decree payment of the value of the account at the time it could have been collected, with interest.

The decree is reversed, with direction to proceed in harmony with this opinion, and with costs to appellant. other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes-