In re Earl

5 Citing cases

  1. Baily v. Ballance

    123 F.2d 352 (4th Cir. 1941)   Cited 8 times
    In Baily v. Ballance, 4 Cir., 123 F.2d 352, we held that a discharge was properly granted a traveling salesman notwithstanding his failure to keep books and records.

    11 U.S.C.A. § 32 sub. c(2). Whether such failure is so justified is thus left to the determination of the court in the exercise of a sound discretion (Hultman v. Tevis, 9 Cir., 82 F.2d 940; Rosenberg v. Bloom, 9 Cir., 99 F.2d 249); and there is nothing in the record before us to indicate that such discretion has been in any way abused in this case. On the contrary, it is clear that failure to keep or preserve records is properly held to be justified when the nature of the bankrupt's occupation is such that the keeping or preserving of records is not required by it. Remington on Bankruptcy, 5th Ed., vol. 7, §§ 3304-6; In re Weismann, D.C., 1 F. Supp. 723; In re Earl, 8 Cir., 45 F.2d 492; In re Neiderheiser, 8 Cir., 45 F.2d 489, 490. As was well said by the late Judge Kenyon in the case last cited, which likewise dealt with the discharge in bankruptcy of a traveling salesman: "If the occupation or business of the bankrupt were such that ordinarily no books of account would be kept, or if the court under all the circumstances deems the failure to keep such books justified, then the failure so to do would not be sufficient to bar discharge. If the bankrupt were engaged in no business and was a mere employee not in the habit of keeping books or records of account, surely the failure so to do would be no bar to discharge.

  2. Rosenberg v. Bloom

    99 F.2d 249 (9th Cir. 1938)   Cited 18 times

    Each case stands on its own facts with respect to whether or not the bankrupt has sustained the burden of justification which the statute places upon him for failure to keep or destruction of adequate records. In re Underhill, 2 Cir. 1936, 82 F.2d 258, 259; In re Earl, 8 Cir. 1930, 45 F.2d 492. And with the bankruptcy court is lodged a reasonably wide discretion in respect to the matter of denying a discharge for failure to keep books.

  3. In re Neiderheiser

    45 F.2d 489 (8th Cir. 1930)   Cited 22 times

    KENYON, Circuit Judge. Appellee, with H.R. Earl, who is appellee in case No. 8910, 45 F.2d 492, purchased a shoe business at Sioux Falls, S.D., from appellant. It was conducted as a corporation, and became bankrupt in 1926.

  4. In re Worley

    47 F. Supp. 212 (D. Neb. 1942)   Cited 2 times

    The keeping of books is not always required even of men who may correctly be regarded as business men and the failure to keep them is not in all circumstances a valid ground for denial of discharge. Hultman v. Tevis, 9 Cir., 82 F.2d 940, 941; In re Pinko, 7 Cir., 94 F.2d 259; Dixwell v. Scott Co., 1 Cir., 115 F.2d 873; In re Hatch, D.C., 43 F.2d 463; In re Earl, 8 Cir., 45 F.2d 492. Surely, therefore, a farmer bankrupt is not ordinarily to be denied the privilege of his discharge because he had failed to maintain a set of books of account. The averment of the concealment by fraudulent transfer of property in order to evade judgment on liability for fraud rests upon the giving in 1936 by the debtor to his father of a certain note and a second chattel mortgage lien securing it as against the debtor's live stock and feed and the maintenance of this security in force in varying principal amounts and on changing identified chattels thereafter until and including the initiation of this proceeding, except for the period of something more than a year during which there was no chattel mortgage in effect from the son to the father.

  5. In re Losinski

    80 B.R. 464 (Bankr. D. Minn. 1987)   Cited 20 times
    Collecting decisions from courts that found material, records from ten or more years pre-petition

    The cases under the Act unanimously hold that the adequacy of the particular books and records — and the sufficiency of the bankrupt's explanation of his insolvency — must be measured on a case-by-case basis, taking into consideration the individual circumstances and specific business and personal events befalling each debtor. See, e.g., Rhoades v. Wikle, supra; Union Bank v. Hoskins, 422 F.2d 1311 (9th Cir. 1970); In re Underhill, 82 F.2d at 259-60; In re Earl, 45 F.2d 492, 493 (8th Cir. 1930); In re Neiderhauser, 45 F.2d 489, 490 (8th Cir. 1930). The Court has been unable to find any reported decision in which a bankrupt or debtor responded to discovery inquiries, or the substantive request for relief, in an objection to discharge based on 11 U.S.C. § 727(a)(3) and 727(a)(5) or their Bankruptcy Act predecessors, by refusing to account for transactions because they occurred too long before the commencement of the bankruptcy case. It was certainly open to bankrupts in Act cases and debtors in Code cases to raise the argument.