assignment for the benefit of creditors massachusetts

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• General Laws
• Part I ADMINISTRATION OF THE GOVERNMENT
• Title XV REGULATION OF TRADE
• Chapter 106 UNIFORM COMMERCIAL CODE
• Article 9 SECURED TRANSACTIONS
• Section 9-102 Definitions and Index of Definitions

Section 9-102

Section 9-102: definitions and index of definitions.

Section 9–102. (a) Article 9 definitions. In this article:

(1) ''Accession'' means goods that are physically united with other goods in such a manner that the identity of the original goods is not lost.

(2) ''Account'', except as used in ''account for'', means a right to payment of a monetary obligation, whether or not earned by performance, (i) for property that has been or is to be sold, leased, licensed, assigned, or otherwise disposed of, (ii) for services rendered or to be rendered, (iii) for a policy of insurance issued or to be issued, (iv) for a secondary obligation incurred or to be incurred, (v) for energy provided or to be provided, (vi) for the use or hire of a vessel under a charter or other contract, (vii) arising out of the use of a credit or charge card or information contained on or for use with the card, or (viii) as winnings in a lottery or other game of chance operated or sponsored by a state, governmental unit of a state, or person licensed or authorized to operate the game by a state or governmental unit of a state. The term includes health-care-insurance receivables. The term does not include (i) rights to payment evidenced by chattel paper or an instrument, (ii) commercial tort claims, (iii) deposit accounts, (iv) investment property, (v) letter-of-credit rights or letters of credit, or (vi) rights to payment for money or funds advanced or sold, other than rights arising out of the use of a credit or charge card or information contained on or for use with the card.

(3) ''Account debtor'' means a person obligated on an account, chattel paper, or general intangible. The term does not include persons obligated to pay a negotiable instrument, even if the instrument constitutes part of chattel paper.

(4) ''Accounting'', except as used in ''accounting for'', means a record:

(A) authenticated by a secured party;

(B) indicating the aggregate unpaid secured obligations as of a date not more than 35 days earlier or 35 days later than the date of the record; and

(C) identifying the components of the obligations in reasonable detail.

(5) ''Agricultural lien'' means an interest in farm products:

(A) which secures payment or performance of an obligation for:

(i) goods or services furnished in connection with a debtor's farming operation; or

(ii) rent on real property leased by a debtor in connection with its farming operation;

(B) which is created by statute in favor of a person that:

(i) in the ordinary course of its business furnished goods or services to a debtor in connection with a debtor's farming operation; or

(ii) leased real property to a debtor in connection with the debtor's farming operation; and

(C) whose effectiveness does not depend on the person's possession of the personal property.

(6) ''As-extracted collateral'' means:

(A) oil, gas, or other minerals that are subject to a security interest that:

(i) is created by a debtor having an interest in the minerals before extraction; and

(ii) attaches to the minerals as extracted; or

(B) accounts arising out of the sale at the wellhead or minehead of oil, gas, or other minerals in which the debtor had an interest before extraction.

(7) ''Authenticate'' means:

(A) to sign; or

(B) with present intent to adopt or accept a record, to attach to or logically associate with the record an electronic sound, symbol or process.

(8) ''Bank'' means an organization that is engaged in the business of banking. The term includes savings banks, savings and loan associations, credit unions, and trust companies.

(9) ''Cash proceeds'' means proceeds that are money, checks, deposit accounts, or the like.

(10) ''Certificate of title'' means a certificate of title with respect to which a statute provides for the security interest in question to be indicated on the certificate as a condition or result of the security interest's obtaining priority over the rights of a lien creditor with respect to the collateral. The term includes another record maintained as an alternative to a certificate of title by the governmental unit that issues certificates of title if a law permits the security interest in question to be indicated on the record as a condition or result of the security interest's obtaining priority over the rights of a lien creditor with respect to the collateral.

(11) ''Chattel paper'' means a record or records that evidence both a monetary obligation and a security interest in specific goods, a security interest in specific goods and software used in the goods, a security interest in specific goods and license of software used in the goods, a lease of specific goods, or a lease of specific goods and license of software used in the goods. In this paragraph, ''monetary obligation'' means a monetary obligation secured by the goods or owed under a lease of the goods and includes a monetary obligation with respect to software used in the goods. The term does not include charters or other contracts involving the use or hire of a vessel or records that evidence a right to payment arising out of the use of a credit or charge card or information contained on or for use with the card. If a transaction is evidenced by records that include an instrument or series of instruments, the group of records taken together constitutes chattel paper.

(12) ''Collateral'' means the property subject to a security interest or agricultural lien. The term includes:

(A) proceeds to which a security interest attaches;

(B) accounts, chattel paper, payment intangibles, and promissory notes that have been sold; and

(C) goods that are the subject of a consignment.

(13) ''Commercial tort claim'' means a claim arising in tort with respect to which:

(A) the claimant is an organization; or

(B) the claimant is an individual and the claim:

(i) arose in the course of the claimant's business or profession; and

(ii) does not include damages arising out of personal injury to or the death of an individual.

(14) ''Commodity account'' means an account maintained by a commodity intermediary in which a commodity contract is carried for a commodity customer.

(15) ''Commodity contract'' means a commodity futures contract, an option on a commodity futures contract, a commodity option, or another contract if the contract or option is:

(A) traded on or subject to the rules of a board of trade that has been designated as a contract market for such a contract pursuant to federal commodities laws; or

(B) traded on a foreign commodity board of trade, exchange, or market, and is carried on the books of a commodity intermediary for a commodity customer.

(16) ''Commodity customer'' means a person for which a commodity intermediary carries a commodity contract on its books.

(17) ''Commodity intermediary'' means a person that:

(A) is registered as a futures commission merchant under federal commodities law; or

(B) in the ordinary course of its business provides clearance or settlement services for a board of trade that has been designated as a contract market pursuant to federal commodities law.

(18) ''Communicate'' means:

(A) to send a written or other tangible record;

(B) to transmit a record by any means agreed upon by the persons sending and receiving the record; or

(C) in the case of transmission of a record to or by a filing office, to transmit a record by any means prescribed by filing-office rule.

(19) ''Consignee'' means a merchant to which goods are delivered in a consignment.

(20) ''Consignment'' means a transaction, regardless of its form, in which a person delivers goods to a merchant for the purpose of sale and:

(A) the merchant:

(i) deals in goods of that kind under a name other than the name of the person making delivery;

(ii) is not an auctioneer; and

(iii) is not generally known by its creditors to be substantially engaged in selling the goods of others;

(B) with respect to each delivery, the aggregate value of the goods is $1,000 or more at the time of delivery;

(C) the goods are not consumer goods immediately before delivery; and

(D) the transaction does not create a security interest that secures an obligation.

(21) ''Consignor'' means a person that delivers goods to a consignee in a consignment.

(22) ''Consumer debtor'' means a debtor in a consumer transaction.

(23) ''Consumer goods'' means goods that are used or bought for use primarily for personal, family, or household purposes.

(24) ''Consumer-goods transaction'' means a consumer transaction in which:

(A) an individual incurs an obligation primarily for personal, family, or household purposes; and

(B) a security interest in consumer goods secures the obligation.

(25) ''Consumer obligor'' means an obligor who is an individual and who incurred the obligation as part of a transaction entered into primarily for personal, family, or household purposes.

(26) ''Consumer transaction'' means a transaction in which (i) an individual incurs an obligation primarily for personal, family, or household purposes, (ii) a security interest secures the obligation, and (iii) the collateral is held or acquired primarily for personal, family, or household purposes. The term includes consumer-goods transactions.

(27) ''Continuation statement'' means an amendment of a financing statement which:

(A) identifies, by its file number, the initial financing statement to which it relates; and

(B) indicates that it is a continuation statement for, or that it is filed to continue the effectiveness of, the identified financing statement.

(28) ''Debtor'' means:

(A) a person having an interest, other than a security interest or other lien, in the collateral, whether or not the person is an obligor;

(B) a seller of accounts, chattel paper, payment intangibles, or promissory notes; or

(C) a consignee.

(29) ''Deposit account'' means a demand, time, savings, passbook, or similar account maintained with a bank. The term does not include investment property or accounts evidenced by an instrument.

(30) ''Document'' means a document of title or a receipt of the type described in Section 7–201(b).

(31) ''Electronic chattel paper'' means chattel paper evidenced by a record or records consisting of information stored in an electronic medium.

(32) ''Encumbrance'' means a right, other than an ownership interest, in real property. The term includes mortgages and other liens on real property.

(33) ''Equipment'' means goods other than inventory, farm products, or consumer goods.

(34) ''Farm products'' means goods, other than standing timber, with respect to which the debtor is engaged in a farming operation and which are:

(A) crops grown, growing, or to be grown, including:

(i) crops produced on trees, vines, and bushes; and

(ii) aquatic goods produced in aquacultural operations;

(B) livestock, born or unborn, including aquatic goods produced in aquacultural operations;

(C) supplies used or produced in a farming operation; or

(D) products of crops or livestock in their unmanufactured states.

(35) ''Farming operation'' means raising, cultivating, propagating, fattening, grazing, or any other farming, livestock, or aquacultural operation.

(36) ''File number'' means the number assigned to an initial financing statement pursuant to Section 9–519(a).

(37) ''Filing office'' means an office designated in Section 9–501 as the place to file a financing statement.

(38) ''Filing-office rule'' means a rule adopted pursuant to Section 9–526.

(39) ''Financing statement'' means a record or records composed of an initial financing statement and any filed record relating to the initial financing statement.

(40) ''Fixture filing'' means the filing of a financing statement covering goods that are or are to become fixtures and satisfying Section 9–502(a) and (b). The term includes the filing of a financing statement covering goods of a transmitting utility which are or are to become fixtures.

(41) ''Fixtures'' means goods that have become so related to particular real property that an interest in them arises under real property law.

(42) ''General intangible'' means any personal property, including things in action, other than accounts, chattel paper, commercial tort claims, deposit accounts, documents, goods, instruments, investment property, letter-of-credit rights, letters of credit, money, and oil, gas, or other minerals before extraction. The term includes payment intangibles and software.

(43) [Reserved]

(44) ''Goods'' means all things that are movable when a security interest attaches. The term includes (i) fixtures, (ii) standing timber that is to be cut and removed under a conveyance or contract for sale, (iii) the unborn young of animals, (iv) crops grown, growing, or to be grown, even if the crops are produced on trees, vines, or bushes, and (v) manufactured homes. The term also includes a computer program embedded in goods and any supporting information provided in connection with a transaction relating to the program if (i) the program is associated with the goods in such a manner that it customarily is considered part of the goods, or (ii) by becoming the owner of the goods, a person acquires a right to use the program in connection with the goods. The term does not include a computer program embedded in goods that consist solely of the medium in which the program is embedded. The term also does not include accounts, chattel paper, commercial tort claims, deposit accounts, documents, general intangibles, instruments, investment property, letter-of-credit rights, letters of credit, money, or oil, gas, or other minerals before extraction.

(45) ''Governmental unit'' means a subdivision, agency, department, county, parish, municipality, or other unit of the government of the United States, a state, or a foreign country. The term includes an organization having a separate corporate existence if the organization is eligible to issue debt on which interest is exempt from income taxation under the laws of the United States.

(46) ''Health-care-insurance receivable'' means an interest in or claim under a policy of insurance which is a right to payment of a monetary obligation for health-care goods or services provided or to be provided.

(47) ''Instrument'' means a negotiable instrument or any other writing that evidences a right to the payment of a monetary obligation, is not itself a security agreement or lease, and is of a type that in ordinary course of business is transferred by delivery with any necessary indorsement or assignment. The term does not include (i) investment property, (ii) letters of credit, or (iii) writings that evidence a right to payment arising out of the use of a credit or charge card or information contained on or for use with the card.

(48) ''Inventory'' means goods, other than farm products, which:

(A) are leased by a person as lessor;

(B) are held by a person for sale or lease or to be furnished under a contract of service;

(C) are furnished by a person under a contract of service; or

(D) consist of raw materials, work in process, or materials used or consumed in a business.

(49) ''Investment property'' means a security, whether certificated or uncertificated, security entitlement, securities account, commodity contract, or commodity account.

(50) ''Jurisdiction of organization'', with respect to a registered organization, means the jurisdiction under whose law the organization is formed or organized.

(51) ''Letter-of-credit right'' means a right to payment or performance under a letter of credit, whether or not the beneficiary has demanded or is at the time entitled to demand payment or performance. The term does not include the right of a beneficiary to demand payment or performance under a letter of credit.

(52) ''Lien creditor'' means:

(A) a creditor that has acquired a lien on the property involved by attachment, levy, or the like;

(B) an assignee for benefit of creditors from the time of assignment;

(C) a trustee in bankruptcy from the date of the filing of the petition; or

(D) a receiver in equity from the time of appointment.

(53) ''Manufactured home'' means a structure, transportable in 1 or more sections, which, in the traveling mode, is 8 body feet or more in width or 40 body feet or more in length, or, when erected on site, is 320 or more square feet, and which is built on a permanent chassis and designed to be used as a dwelling with or without a permanent foundation when connected to the required utilities, and includes the plumbing, heating, air-conditioning, and electrical systems contained therein. The term includes any structure that meets all of the requirements of this paragraph except the size requirements and with respect to which the manufacturer voluntarily files a certification required by the United States Secretary of Housing and Urban Development and complies with the standards established under Title 42 of the United States Code.

(54) ''Manufactured-home transaction'' means a secured transaction:

(A) that creates a purchase-money security interest in a manufactured home, other than a manufactured home held as inventory; or

(B) in which a manufactured home, other than a manufactured home held as inventory, is the primary collateral.

(55) ''Mortgage'' means a consensual interest in real property, including fixtures, which secures payment or performance of an obligation.

(56) ''New debtor'' means a person that becomes bound as debtor under Section 9–203(d) by a security agreement previously entered into by another person.

(57) ''New value'' means (i) money, (ii) money's worth in property, services, or new credit, or (iii) release by a transferee of an interest in property previously transferred to the transferee. The term does not include an obligation substituted for another obligation.

(58) ''Noncash proceeds'' means proceeds other than cash proceeds.

(59) ''Obligor'' means a person that, with respect to an obligation secured by a security interest in or an agricultural lien on the collateral, (i) owes payment or other performance of the obligation, (ii) has provided property other than the collateral to secure payment or other performance of the obligation, or (iii) is otherwise accountable in whole or in part for payment or other performance of the obligation. The term does not include issuers or nominated persons under a letter of credit.

(60) ''Original debtor'' except as used in Section 9–310(c), means a person that, as debtor, entered into a security agreement to which a new debtor has become bound under Section 9–203(d).

(61) ''Payment intangible'' means a general intangible under which the account debtor's principal obligation is a monetary obligation.

(62) ''Person related to'', with respect to an individual, means:

(A) the spouse of the individual;

(B) a brother, brother-in-law, sister, or sister-in-law of the individual;

(C) an ancestor or lineal descendant of the individual or the individual's spouse; or

(D) any other relative, by blood or marriage, of the individual or the individual's spouse who shares the same home with the individual.

(63) ''Person related to'', with respect to an organization, means:

(A) a person directly or indirectly controlling, controlled by, or under common control with the organization;

(B) an officer or director of, or a person performing similar functions with respect to, the organization;

(C) an officer or director of, or a person performing similar functions with respect to, a person described in subparagraph (A);

(D) the spouse of an individual described in subparagraph (A), (B), or (C); or

(E) an individual who is related by blood or marriage to an individual described in subparagraph (A), (B), (C), or (D) and shares the same home with the individual.

(64) ''Proceeds'', except as used in Section 9–609(b), means the following property:

(A) whatever is acquired upon the sale, lease, license, exchange, or other disposition of collateral;

(B) whatever is collected on, or distributed on account of, collateral;

(C) rights arising out of collateral;

(D) to the extent of the value of collateral, claims arising out of the loss, nonconformity, or interference with the use of, defects or infringement of rights in, or damage to, the collateral; or

(E) to the extent of the value of collateral and to the extent payable to the debtor or the secured party, insurance payable by reason of the loss or nonconformity of, defects or infringement of rights in, or damage to, the collateral.

(65) ''Promissory note'' means an instrument that evidences a promise to pay a monetary obligation, does not evidence an order to pay, and does not contain an acknowledgment by a bank that the bank has received for deposit a sum of money or funds.

(66) ''Proposal'' means a record authenticated by a secured party which includes the terms on which the secured party is willing to accept collateral in full or partial satisfaction of the obligation it secures pursuant to Sections 9–620, 9–621, and 9–622.

(67) ''Public-finance transaction'' means a secured transaction in connection with which:

(A) debt securities are issued;

(B) all or a portion of the securities issued have an initial stated maturity of at least 20 years; and

(C) the debtor, obligor, secured party, account debtor or other person obligated on collateral, assignor or assignee of a secured obligation, or assignor or assignee of a security interest is a state or a governmental unit of a state.

(68) ''Public organic record'' means a record that is available to the public for inspection and is:

(A) a record consisting of the record initially filed with or issued by a state or the United States to form or organize an organization and any record filed with or issued by the state or the United States which amends or restates the initial record;

(B) an organic record of a business trust consisting of the record initially filed with a state and any record filed with the state which amends or restates the initial record, if a statute of the State governing business trusts requires that the record be filed with the state; or

(C) a record consisting of legislation enacted by the legislature of a state or the Congress of the United States which forms or organizes an organization, any record amending the legislation and any record filed with or issued by the state or the United States which amends or restates the name of the organization.

(69) ''Pursuant to commitment'', with respect to an advance made or other value given by a secured party, means pursuant to the secured party's obligation, whether or not a subsequent event of default or other event not within the secured party's control has relieved or may relieve the secured party from its obligation.

(70) ''Record'', except as used in ''for record'', ''of record'', ''record or legal title'', and ''record owner'', means information that is inscribed on a tangible medium or which is stored in an electronic or other medium and is retrievable in perceivable form.

(71) ''Registered organization'' means an organization formed or organized solely under the law of a single state or the United States by the filing of a public organic record with, the issuance of a public organic record by, or the enactment of legislation by the state or the United States. The term includes a business trust that is formed or organized under the law of a single state if a statute of the state governing business trusts requires that the business trust's organic record be filed with the state.

(72) ''Secondary obligor'' means an obligor to the extent that:

(A) the obligor's obligation is secondary; or

(B) the obligor has a right of recourse with respect to an obligation secured by collateral against the debtor, another obligor, or property of either.

(73) ''Secured party'' means:

(A) a person in whose favor a security interest is created or provided for under a security agreement, whether or not any obligation to be secured is outstanding;

(B) a person that holds an agricultural lien;

(C) a consignor;

(D) a person to which accounts, chattel paper, payment intangibles, or promissory notes have been sold;

(E) a trustee, indenture trustee, agent, collateral agent, or other representative in whose favor a security interest or agricultural lien is created or provided for; or

(F) a person that holds a security interest arising under Section 2–401, 2–505, 2–711(3), 2A–508(5), 4–210, or 5–118.

(74) ''Security agreement'' means an agreement that creates or provides for a security interest.

(75) ''Send'', in connection with a record or notification, means:

(A) to deposit in the mail, deliver for transmission, or transmit by any other usual means of communication, with postage or cost of transmission provided for, addressed to any address reasonable under the circumstances; or

(B) to cause the record or notification to be received within the time that it would have been received if properly sent under subparagraph (A).

(76) ''Software'' means a computer program and any supporting information provided in connection with a transaction relating to the program. The term does not include a computer program that is included in the definition of goods.

(77) ''State'' means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States.

(78) ''Supporting obligation'' means a letter-of-credit right or secondary obligation that supports the payment or performance of an account, chattel paper, a document, a general intangible, an instrument, or investment property.

(79) ''Tangible chattel paper'' means chattel paper evidenced by a record or records consisting of information that is inscribed on a tangible medium.

(80) ''Termination statement'' means an amendment of a financing statement which:

(B) indicates either that it is a termination statement or that the identified financing statement is no longer effective.

(81) ''Transmitting utility'' means a person primarily engaged in the business of:

(A) operating a railroad, subway, street railway, or trolley bus;

(B) transmitting communications electrically, electromagnetically, or by light;

(C) transmitting goods by pipeline or sewer; or

(D) transmitting or producing and transmitting electricity, steam, gas, or water.

(b) Definitions in other articles. The following definitions in other articles apply to this article:

''Applicant'' Section 5–102.

''Beneficiary'' Section 5–102.

''Broker'' Section 8–102.

''Certificated security'' Section 8–102.

''Check'' Section 3–104.

''Clearing corporation'' Section 8–102.

''Contract for sale'' Section 2–106.

''Control'' (with respect to a document of title) Section 7–106.

''Customer'' Section 4–104.

''Entitlement holder'' Section 8–102.

''Financial asset'' Section 8–102.

''Holder in due course'' Section 3–302.

''Issuer'' (with respect to a letter of credit or letter-of-credit right) Section 5–102.

''Issuer'' (with respect to security) Section 8–201.

''Lease'' Section 2A–103.

''Lease agreement'' Section 2A–103.

''Lease contract'' Section 2A–103.

''Leasehold interest'' Section 2A–103.

''Lessee'' Section 2A–103.

''Lessee in ordinary course of business'' Section 2A–103.

''Lessor'' Section 2A–103.

''Lessor's residual interest'' Section 2A–103.

''Letter of credit'' Section 5–102.

''Merchant'' Section 2–104.

''Negotiable instrument'' Section 3–104.

''Nominated person'' Section 5–102.

''Note'' Section 3–104.

''Proceeds of a letter of credit'' Section 5–114.

''Prove'' Section 3–103.

''Sale'' Section 2–106.

''Securities account'' Section 8–501.

''Securities intermediary'' Section 8–102.

''Security'' Section 8–102.

''Security certificate'' Section 8–102.

''Security entitlement'' Section 8–102.

''Uncertificated security'' Section 8–102.

(c) Article 1 definitions and principles. Article 1 contains general definitions and principles of construction and interpretation applicable throughout this article.

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HENRY FRIEDMAN vs. THE FIRST NATIONAL BANK OF BOSTON.

344 mass. 593, january 3, 1962 - june 26, 1962, suffolk county, present: wilkins, c.j., spalding, williams, cutter, & kirk, jj..

Upon an assignment by an insolvent of all assets for the benefit of creditors, a bank in which the assignor had a deposit in a checking account and which had not assented to the assignment became entitled to set off the deposit against a larger promissory note of the assignor held by the bank although the note was not then due. [596-597]

An assignee for the benefit of creditors not asserting a right to act for a creditor who had attached by trustee process funds of the assignor on deposit in a bank had no right as against the bank to the trusteed funds where, within G. L. c. 246, Section 26, the bank, apart from the trustee attachment, was entitled to set off such funds against a larger promissory note of the assignor held by it. [597]

CONTRACT OR TORT. Writ in the Superior Court dated September 28, 1956.

The action was heard by Barron, J.

Joseph Ford for the defendant.

Morris Michelson for the plaintiff.

WILLIAMS, J. This is an action by the assignee for the benefit of creditors of Galco Products, Inc. (Galco), a Massachusetts corporation, to recover sums deposited with the defendant by Galco and to enforce payment of two

checks drawn on the defendant by Galco and payable to the plaintiff. The case was referred to an auditor whose findings were not to be final. It appears from his report that on May 4, 1956, Galco assigned in writing all of its assets to the plaintiff for the benefit of creditors. On this date, the balance of Galco's commercial checking account with the defendant was $2,682.88. In addition, the defendant held $999 and $200 of Galco which had been trusteed in actions by two of Galco's creditors. The defendant also held Galco's promissory note for $5,000 which was payable to it on May 10, 1956. On May 7, Galco gave the plaintiff two checks in the respective amounts of $2,000 and $800 payable to his order which he deposited in a Boston bank as assignee of Galco. On May 9 these checks were presented for payment to the defendant which then had knowledge of the assignment, and payment was refused. On advice of counsel, the defendant held the Galco deposit including the trusteed funds as a set-off against the amount due May 10 on the Galco note. Galco, in fact, was insolvent at the time of the assignment to the plaintiff and continued to be so until the time of the auditor's hearing, but no petition in bankruptcy had been filed. On May 12 and on May 18, after the checks of $2,000 and $800 had been returned unpaid, the plaintiff orally demanded payment of all amounts then on deposit in Galco's account. The defendant again refused payment. The defendant never assented to the assignment, and its claim on the $5,000 note was not included in the list of creditors given to the plaintiff by Galco.

The plaintiff's declaration is in four counts. In count 1, it is alleged that the defendant refused to pay the check for $2,000, although the funds held by the defendant were sufficient for the payment. In count 2, there were similar allegations in reference to the $800 check. In count 3, it was alleged that the defendant converted $2,682.88, the balance of the Galco account with the defendant, and that the defendant owed to the plaintiff that amount plus interest. In count 4 it was alleged that the defendant improperly applied the amounts of $999 and $200 in part payment of Galco's

note although the note was not then due. In its answer, the defendant alleged as an equitable defence that it was entitled to apply the amounts deposited with it by Galco against Galco's note, and in a declaration in set-off alleged Galco's obligation to pay the note of $5,000.

The case was tried to a judge sitting without jury on the auditor's report and certain additional evidence presented by the defendant. The judge made the same findings of fact as did the auditor and also found that the defendant on May 9, 1956, "wrongfully appropriated and applied the sum of $2,682.88, then the balance of Galco Products, Inc.'s checking account in the defendant's bank, in part satisfaction of payment of Galco Products, Inc.'s note of $5,000 to the defendant, due on May 10, 1956." In her ultimate findings the judge found for the plaintiff on count 3 in the amount of $2,682.88 with interest and for the defendant on counts 1, 2, and 4. On the defendant's declaration in set-off the judge found for the defendant in set-off. The judge properly construed count 3 as sounding in contract rather than in tort and as alleging a breach by the defendant of its contract obligation to pay the plaintiff the amount of the Galco deposit. See Harding v. Broadway Natl. Bank, 294 Mass. 13 , 19. The funds which are the subject of count 3 were the absolute property of the defendant, and the relationship between the defendant and Galco was that of debtor and creditor. Krinsky v. Pilgrim Trust Co. 337 Mass. 401 , 405, and cases cited.

Numerous exceptions to rulings and findings by the judge are contained in a consolidated bill of exceptions. The principal point of law at issue is presented by the defendant's exception to the denial of its request for a ruling: "11. A bank has the right of equitable set-off in an action against it for money on deposit by an assignee for the benefit of creditors of a depositor where the depositor was insolvent and continues to remain so after the time demand for payment of the deposit was made and where, at such time, the depositor was indebted to the bank on a note which exceeded the amount of the deposit but which became due after demand for payment of the deposit."

"Mere insolvency" does not give a bank the right to apply the insolvent's deposit against an unmatured note. Spaulding v. Backus, 122 Mass. 553, 556. Wiley v. Bunker Hill Natl. Bank, 183 Mass. 495, 497. Jump v. Leon, 192 Mass. 511 , 515-516. Harding v. Broadway Natl. Bank, supra, at p. 18. It is clear that if Galco's bankruptcy had intervened before the maturity of the note (Harding v. Broadway Natl. Bank, supra; Studley v. Boylston Natl. Bank, 229 U.S. 523; Bankruptcy Act, Section 68 [a], 11 U. S. C. Section 108 [a] [1958]) or if statutory insolvency proceedings had been commenced (Demmon v. Boylston Bank, 5 Cush. 194, 197) set-off would have been immediately available. While no case in this Commonwealth has directly considered the effect of an assignment for the benefit of creditors upon a bank's right to set off an insolvent's deposit against an unmatured obligation, it was said in Wiley v. Bunker Hill Natl. Bank, supra, p. 498, that, if proceedings in insolvency or bankruptcy had been instituted by or against an insolvent depositor at or before the presentment of checks drawn by that depositor, and that "even if [the depositor] had made an assignment at common law for the benefit of his creditors," the bank might have had the right to apply the deposit against unmatured notes of the depositor.

We think that in the circumstances of this case, Galco's action in assigning all of its assets to the plaintiff for the benefit of creditors gave the bank a right of set-off. By its assignment Galco put it beyond its power to pay its note when it became due. The purpose of the assignment was to effect a pro rata disposition of its assets to assenting creditors (see Clarke, Set-Off of Immature Claims in Insolvency, 34 Harv. L. Rev. 178, 195), and, while the defendant's right to payment of its note was not lost, as a practical matter its ability to collect on the note was jeopardized.

There was no error in finding for the defendant on counts 1 and 2 which asserted Galco's right to have its checks payable to the assignee honored by the bank. If, as we have above held, the bank was entitled to apply the balance in the Galco account in set-off against the unmatured note, plainly

there was no balance in the checking account available for the payment of the checks. National Mahaiwe Bank v. Peck, 127 Mass. 298, 300. Krinsky v. Pilgrim Trust Co. 337 Mass. 401 , 405, and cases cited.

The plaintiff had no right to the amounts trusteed in the hands of the defendant. As common law assignee, he had no greater right than Galco to require the defendant to pay over these amounts which were held to answer for any judgment obtained against Galco by its trusteeing creditors. See Arlington Trust Co. v. Le Vine, 291 Mass. 245 , 247. Count 4 does not purport to assert a right in the assignee to act for the benefit of the attaching creditors. It does not appear that they had assented to the assignment, but if they had, the right of the bank to set off the trusteed funds would not have been affected. G. L. c. 246, Section 26.

In view of our conclusion as to the defendant's rights in set-off, there is no occasion for further discussion of the rulings to which the plaintiff has excepted.

The defendant's exception to the denial of its request for ruling 11 is sustained and the plaintiff's exceptions to the denial of his requests for rulings are overruled. Judgment is to be entered for the defendant in the main action and for the defendant in set-off on the defendant's declaration in set-off.

So ordered.