Becker v. Zarkin Et Al‪.‬

FIELD, Justice. This is a suit in equity. The bill alleges that the defendant Zarkin on or about April 6, 1932, made a common law assignment for the benefit of his creditors to the defendant Jacobs by an instrument in writing, a copy of which is attached to the bill; that at the time of the assignment the plaintiff was a creditor of the defendant Zarkin on certain promissory notes; that the plaintiff assented to the assignment according to its terms; that he brings this suit for the benefit of himself and all other creditors of the defendant Zarkin who assented to the assignment and may join in the suit as parties plaintiff; that the defendant Jacobs as assignee has reduced the assigned property to cash and, therefore, that the plaintiff is entitled to recover from the defendant Jacobs the whole or a substantial part of the amount of the debt to the plaintiff of the defendant Zarkin. The written assignment provided that no creditor should be entitled to the benefit of its provisions 'who fails to assent in writing to the terms of the same within four months from its date; but such assent may be expressed either by signing these presents or by signing and delivering to the party of the second part [the assignee] any other writing expressing an assent to the terms of this instrument,' with an exception not here material. The defendants filed pleas in identical terms alleging, together with another defense, that the plaintiff 'expressly refused to become an assenting creditor * * * within the time limited.' The trial Judge found and ruled as follows: 'In this case at the hearing on the plea there was evidence, and I find, that on April 6, 1932, the defendant Samuel Zarkin made an assignment for the benefit of his creditors to David W. Jacobs; that the defendant David W. Jacobs accepted said trust and by the terms of said assignment creditors could have become parties thereto by assenting on or before August 6, 1932. About one month from April 6, 1932, Becker came to the office of David W. Jacobs, who said that he got his letter; that Jacobs explained to Becker the contents of the letter and told him that he thought then that the estate would pay about twenty percent and asked him about his claim. Becker said that he held eight or twelve notes and Jacobs asked him to deliver the notes to him; Becker signed a written assent to be a participating creditor on that date, but he would not deliver the notes. He then left the office and returned again shortly thereafter and told Jacobs that he decided not to assent, that he wanted to get all of his money and left the office without delivering the notes or any evidence of them, and he never returned. On these facts this plea is to be sustained.' Interlocutory decrees were entered sustaining the pleas and later a final decree was entered dismissing the bill. From these decrees the plaintiff appealed.