Sampson

The bankrupt, Berg, operated a restaurant in San Diego under the name of Berg’s Cafe. On September 1, 1933, he sold a half interest in this restaurant, including a half interest in certain fixtures and equipment which are involved herein, to the appellant in this action. He. was heavily indebted at the time and no notice was given in accordance with section 3440 of the Civil Code. Other fixtures were added and improvements were made with money furnished by the appellant and the restaurant business was continued without changing its name.

About three months later Berg was adjudicated a voluntary bankrupt and the respondent, as receiver, took charge of the equipment in the restaurant. Shortly thereafter the appellant appeared before the referee in bankruptcy and requested that all of the restaurant property be turned over to him as a nonbankrupt partner, in accordance with section 23, subdivision (h), U. S. C. A., Bankruptcy, title 11. The referee ordered the property delivered to this appellant in accordance with said section and at the same time gave permission to the respondent, as trustee of the bankrupt estate of Berg, to bring a suit in the state court for the purpose of…