Belk-lindsey Company of Orlando, Florida, Inc., Appellant, v. Altheimer & Baer, Inc., Appellee, 300 F.2d 392 (5th Cir. 1962)

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US Court of Appeals for the Fifth Circuit - 300 F.2d 392 (5th Cir. 1962) March 20, 1962

Wm. O. Mehrtens, James E. Glass, Miami, Fla., for appellant; Mershons, Sawyer, Johnston, Simmons & Dunwody, Miami, Fla., of counsel.

Ernest J. London, Miami, Fla., for appellee.

Before TUTTLE, Chief Judge, and BROWN and BELL, Circuit Judges.


Appellant appeals from a final judgment entered upon findings of fact and conclusions of law of the District Court sitting without a jury voiding as to appellee only the sale of a stock of goods to appellant by a debtor of appellee, impressing the stock with an equitable lien in favor of appellee for the amount due, and making appellant a constructive trustee of the assets for the benefit of appellee to the extent of the lien. The findings that seller was insolvent at the time of the conveyance, that it was made to hinder and delay the collection of the claim of appellee then in pending litigation, and to give preference over appellee to other creditors, that appellant had knowledge of such facts and circumstances as would have induced an ordinary prudent person to make inquiry, which inquiry would have led to the discovery of such purpose of seller and that the inquiry was not made, and also that the notice to creditors required under the Florida Bulk Sales statute was not given are not clearly erroneous. Rule 52(a), Fed. R. Civ. P., 28 U.S.C.A., James v. United States, 5 Cir., 1958, 252 F.2d 687. The conclusions drawn from the findings having adequate support and no prejudicial error appearing, we AFFIRM. F. S.A. §§ 608, 55, 726.01, 726.02, 726.03 and 726.04; Jackson v. Citizen's Bank & Trust Co., 1907, 53 Fla. 265, 44 So. 516; Williams v. American Crafts Inc., Fla. App., 1961, 129 So. 2d 165; Fla.Jur., Fraudulent Conveyances, § 8.