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Re Gilley.

The case was submitted without argument.

LOWELL, J. It has been the practice, under the insolvent law of Massachusetts, and under the bankrupt act, so far as I am informed, to consider that a meeting of creditors, warned for ten o'clock, is to be open for at least one hour, and as much longer as the business before the meeting may require. The register has full power of adjournment for cause; but I do not think he should close the polls under one hour in any event. This is a matter of practice which the supreme court have not found it necessary to regulate, and which need not be uniform in all the districts, but which ought to be clearly established uniformly throughout each district.

It has always been the habit in New England, and probably in most of the States, to require a justice of the peace, or other magistrate or commissioner, sitting in civil causes, to give an hour for the parties to appear: United States v. Rundlett, 2 Curtis, C. C. 41; Niles v. Hancock, 3 Met. 568; Hobbs v. Fogg, 6 Gray, 251. See Hunt v. Wickwire, 10 Wend. 102; Shufelt v. Cramer, 20 Johns. 309, It is a common saying, and a true one, that "it is ten o'clock until it is eleven." The rule is by no means confined to magistrates. It is said in Shufelt v. Cramer to apply to orders to show cause before a judge in chambers; and such has always been my practice in the many orders I have occasion to issue in motions and interlocutory matters in bankruptcy. The meeting for the surrender of a bankrupt, under the old practice in England, was always enlarged on the application of the bankrupt; and Mr. Christian says: "If the time is not enlarged, and the bankrupt does not surrender, it is the present practice of the commissioners in London to wait one hour at the least, and until they have finished all other business before them." 1 Chris. Bank. Law (2d ed.), 300. There is a general order under the new English statute of 1869, which authorizes the registrar to adjourn the first meeting for one week at the end of half an hour from the time notified, if a quorum (that is three) of the creditors have not appeared within that time. This, however, is very different from closing, within the hour, a meeting once fully entered on.

The reason for allowing a single plaintiff or defendant an hour

Re Wheeler. Ex parte Carter.

to meet his adversary, applies still more strongly to a general meeting of creditors coming from various places, and liable to more numerous chances of delay, and having a right to suppose that the business of such a meeting must occupy a considerable time. I am of opinion, therefore, that the practice is, and should be, that the first meeting of creditors lasts for at least one hour, and that the votes which were rejected in this case were seasonably offered, and should have been counted. There is no objection to the register's announcing the state of the polls at any time, or even closing them provisionally, with the understanding that they will be opened again if creditors appear within the hour.

It may be said that, the election having been irregular, neither candidate ought to be held to be duly chosen, but that a new election should be ordered. There would be much force in this argument in many cases; but I understand there is nothing in the circumstances of this to require the trouble and expense of another meeting to be incurred.

I appoint A. W. Pope assignee in this cause, he being the person chosen, if the votes of all the creditors are counted.

Re W. F. WHEELER.

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Ex parte W. T. CARTER & AL.
MAY, 1873.

A., doing business in Worcester, Mass., made a contract with B.'s agent in New
York (B. living in Philadelphia) to buy a large quantity of iron, deliverable in
monthly instalments, on credit. The contract was subject to B.'s ratification.
A day or two afterwards A. called on B., who told him he had received the order
and entered it on his books. The parties afterwards corresponded about the con-
tract, as subsisting. Held, there was sufficient evidence of ratification.
Before the time came for delivering the first lot of iron under this contract, A. failed,
and notified his creditors that he could only pay twenty-five per cent of the amount
of his debts. At the meeting of creditors at which this offer was made, C. told
B.'s agent that he would take the iron on A.'s behalf; but he did not offer to pay
cash for it. Held, B. was not bound to accept this offer.
Afterwards B.'s agent, with authority, wrote A. that B. would not deliver the iron
unless his old debt were paid. A. took no notice of this letter, and afterwards went
into bankruptcy. Neither A. nor his assignees in bankruptcy ever offered to pay

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cash for the iron, or demanded its delivery; and there was no evidence that they were ever able or prepared to pay for it. Held, the letter of B.'s agent was not, under these circumstances, such a repudiation of the contract as would authorize A.'s assignees to set off the value of the contract against B.'s debt provable in bankruptcy.

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BANKRUPTCY. SET-OFF. SALE. The bankrupt was a manufacturer of iron at Worcester, Mass., and bought large quantities of pig-iron of the firm of W. T. Carter & Co., of Philadelphia. At the time of his failure he owed them a balance, represented by notes and accounts, amounting to about $13,000, which they offered for proof against the estate. The assignees claimed a set-off for damages, arising out of the alleged breach of a contract by these creditors to sell the bankrupt five hundred tons of iron. The evidence was, that, on the 25th January, 1872, John H. Thompson, of New York, an iron broker, agreed, on the part of Carter & Co., to sell to Wheeler five hundred tons of Coleraine pig-iron, deliverable in lots of one hundred tons at Hoboken, in New Jersey, to be shipped thence to Worcester, by way of Norwich, on the twenty-fifth days of February and March, the twentieth days of April and May, and the fifteenth day of June, respectively, on credit. Thompson made a memorandum of the sale, which was agreed to be sufficient to comply with the statute of frauds, if he was authorized to make it. The terms of his agency were, that he should sell iron for the plaintiffs, subject to their approval. He at once sent them notice of the sale; he testified that he did not think he had ever received any notice of its acceptance. One of the plaintiffs testified that it had never been formally accepted. Wheeler deposed that he saw Mr. Carter a day or two after the sale, and Carter said it had been received and entered on their books.

Towards the middle of February, and before the thirteenth, Wheeler failed, and called a meeting of his creditors, which was held at Worcester on the fifteenth, when he made an offer of twenty-five cents on the dollar in settlement of his debts. Thompson attended this meeting on behalf of the plaintiffs, and refused this offer. While there, another creditor, friendly to Wheeler, offered to take, on Wheeler's account, the iron which was to be delivered under the contract, and to be personally responsible for

Re Wheeler.-Ex parte Carter.

the price. Thompson refused to send it to him unless he would become answerable for the old debt; and at the same interview he told Wheeler that he must pay cash if he took the five hundred tons. Letters passed between the parties which show that the plaintiffs were very much dissatisfied with the statement of Wheeler's affairs. On the 19th of February, Thompson wrote Carter & Co., among other things: "Mr. Wheeler says he will be able to take the five hundred tons of iron at the periods agreed upon, and I have told him if he does so he will have to pay cash for it, as the iron is delivered at Hoboken." On the 23d of February, Thompson wrote to Wheeler, among other things, that Carter & Co. positively refused to let him have any part of the five hundred tons, unless the iron already had by him should be paid for in full. Afterwards, in March or April, Wheeler saw Carter & Co. in Philadelphia, and they offered, as he testified, to make a considerable allowance for this contract, as part of an arrangement for settling the old debt. But the negotiation

failed.

Wheeler petitioned for adjudication of bankruptcy April 12, 1872. There was no evidence, excepting as above given, that either he or his assignees had offered to take or pay for the iron, or that any thing further had been said or done about it. Iron rose largely in price after January 25; and it was agreed that, if the plaintiffs were liable in set-off or mutual credit, the amount of damages was $5,500.

T. L. Nelson, for the assignees. There is sufficient evidence that the contract was ratified by Carter & Co., and this is equivalent to previous authority: Browne, Stat. Frauds (2d ed.), 370. The letters prove this: Browne, §§ 346, 347, 357, 359; Coddington v. Goddard, 16 Gray, 436; Blackburn on Sales, 115.

We admit that, upon Wheeler's insolvency, the sellers might withhold the goods until they received the price. But as they declared beforehand that they would not deliver, it was not necessary for Wheeler or his assignees to tender the price. A tender need not be made, if it would be fruitless: Chitty on Contracts (7th Am. ed.), 443; Cook v. Doggett, 2 Allen, 439.

P. Emory Aldrich, for the creditors. We deny that any contract was made. But, if made, Carter & Co. could retain the

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iron until paid for, after the failure of Wheeler had annulled the agreement for a credit: Arnold v. Delano, 4 Cush. 33; Bloxam v. Sanders, 4 B. & C. 941; Bloxam v. Morley, id. 951. In Bloxam v. Sanders, Bayley, J., says that the seller's right is something more than a lien, and that payment or tender of the price is a condition precedent to the buyer's right of possession. See Tooke v. Hollingworth, 5 T. R. 215. Carter & Co. never repudiated the contract. They were never called on to fulfil it. There is no sufficient evidence that either Wheeler or his assignees were ever in a position to fulfil their part, or ever intended or offered to do so; and it is impossible to say that Carter & Co. would not have performed their part if duly requested.

LOWELL, J. It is admitted that a contract was entered into between Wheeler and Thompson, and a sufficient memorandum made of it, if the bargain was ever ratified by Thompson's principals. It appears that Thompson wrote them that Wheeler would call on them in Philadelphia; and that he did call, and they told him the order was received, and entered on their books. This is a ratification; because they would have no occasion to enter on their books a rejected offer. But, besides this, there is ample evidence that both parties considered it a binding and existing contract in February.

The real question in the case is, whether there has been a breach on the part of Carter & Co. It is agreed that, upon the failure of the buyer, they had the right to withhold the goods until the price should be paid or offered; and that if cash were offered or tendered, or if the want of tender was excused or dispensed with, and the cash was ready for them, they must go on and deliver the iron. The point of controversy is, whether an offer was made, or if not, whether it was waived. The assignees contend that, before the time for the first delivery came, the sellers rescinded the contract, and so left nothing for the buyer to do but to recover his damages. It was decided in the queen's bench in England, in 1853, that if one party to an executory contract repudiates it before the time of performance arrives, the other party may have his action immediately: Hochster v. De La Tour, 2 Ellis & B. 678. This was thought, at the time, to be a novel doctrine; but it has been followed by the other courts:

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