102 Ct. Cl. 815 | Ct. Cl. | 1945
delivered the opinion of the court:
The plaintiffs, Hardin County Savings Bank, and Massachusetts Bonding and Insurance Company, have filed separate petitions. The Bank’s petition, filed May 18, 1948, alleges that on June 28, 1941 Ben B. Hogenson, doing business as the Hogenson Construction Company, entered into a contract with the United States to build for it a Field Office at the Savanna, Illinois, Ordnance Depot Proving Ground, for the price of $42,892; that the Bonding Company executed two bonds whereby it guaranteed performance of the contract, and payment for labor and materials, by Hogenson; that Hogenson, with the knowledge, consent and cooperation of the Bonding Company applied to the plaintiff Bank for a loan to finance this contract and other contracts in which the Bonding Company was interested, and offered to secure the loan by an assignment to the Bank of his contract pursuant to the Assignment of Claims Act of October 9,1940; that the Bonding Company recommended Hogenson to the Bank as a contractor and a credit risk; that the Bank, in reliance on the assignment, executed August 16, 1941, and the recommendation, made loans to Hogenson to finance his contracts.
The Bank’s petition further alleges that the Bank, the Bonding Company, and one Kelleher, receiver in bankruptcy of Hogenson, each made claim to the balance due under the contract; that on January 14,1943, the Comptroller General of the United States, pursuant to Section 148 of the Judicial Code, referred the claims to this court to be tried and decided, that the Bonding Company claims that it advanced money to Hogenson to enable him to complete the contract and paid his debts to laborers and materialmen and hence is entitled to the $28,655.12; but that the Bank is informed and believes that the Bonding Company had not, on November 5, 1941,, made any such advances or payments; that even if it had. done so, the Bank would still have a better right to the fund than the Bonding Company; that Kelleher is no longer the receiver in bankruptcy of Hogenson and has withdrawn his claim and that a trustee in bankruptcy has been appointed for Hogenson’s estate.
The plaintiff Bank asks judgment for $14,683.71, which includes interest to March 31,1942, and, in addition, interest on the principal sum of $13,250 from that date until paid.
The petition of the other plaintiff, the Massachusetts Bonding and Insurance Company, states the facts above recited from the Bank’s petition about Hogenson’s contract, the Bonding Company’s two bonds and Hogenson’s assign
The Bonding Company says that it filed its claim for the entire balance with the Comptroller General of the United States, who referred the question to this court; that it denies that the Bank is entitled to any of the unpaid balance; that Hogenson was adjudicated a bankrupt by the District Court of the United States for the Northern District of Iowa, on January 30, 1942; that Elmo E. McCormick, as trustee in bankruptcy of the estate of Hogenson is claiming the entire unpaid balance; that the trustee’s claim is without merit.
The Bonding Company further alleges that as surety it is entitled to the equitable right of subrogation to the balance of $28,655.12; that its right dates back to the date of giving its bonds, on or about June 28, 1941, and is superior to any right of the Bank as assignee, or the trustee in bankruptcy. It asks for judgment for $28,655.12.
The Bank and the Bonding Company having filed their petitions as above shown, the Government, pursuant to the provisions of Section 14 (b) of the Contract Settlement Act of 1944 approved July 1,1944,
The trustee in his plea to the jurisdiction further says that the plaintiff Bonding Company appeared in the Bankruptcy Court in response to the notice and filed a claim and proof therein in substantially the same amount and for the same consideration as that stated in its petition herein, and thereby consented to and invoked the jurisdiction of the Bankruptcy Court to adjudicate its rights in the $28,655.12; that the trustee brought a suit in the United States District Court
The trustee’s plea further says that the United States was not, at the time the petition in bankruptcy was filed and the adjudication occurred, and never has been, an adverse claimant of the $28,655.12, and has not and does not now claim any beneficial interest in it or any right to withhold it from its rightful owner; that the Bankruptcy Court’s jurisdiction to determine the validity of all claims to or liens on and to collect, administer, and distribute the $28,655.12 is exclusive and not concurrent with that of any other court; that the claim of the Bank under its assignment may amount to an unlawful preference; that the Bank’s security under the assignment from Hogenson may have been lost by reason of payments made by the United States to the Bank, in excess of Hogenson’s debt to the Bank, but which were not applied by the Bank to the secured debt; that if the Bank receives all or a part of the $3,520.03 of the school district money, its claim against Hogenson will be correspondingly reduced; that these matters can be determined only in a bankruptcy court.
The trustee, in concluding his plea “asks that the foregoing objections and plea to the jurisdiction be sustained, and that this court cease from further proceedings against said Trustee or against the property and assets now being administered in bankruptcy by the United States District Court for the Northern District of Iowa, a Court of Bankruptcy.”
As to the trustee’s plea that this court cease from “further proceedings against * * * the property and assets now being administered in bankruptcy” by the District Court, it cannot be granted because this court is the only forum in which claims against the United States, of the amount here involved, can be litigated. The Bank and the Bonding Company having filed their suits here, we have no right to refuse to decide them because there is another potential claimant, the trustee in bankruptcy of Hogenson’s estate. If the bankrupt estate has an interest in the litigation, it may of course be asserted here, and in these pending suits, if the trustee appears, as he has the privilege of doing under the provisions of Section 14 (b) of the Contract Settlement Act of 1944. If the trustee can show that the estate, rather than the Bank or the Bonding Company, is entitled to the money involved in these suits, or any part of the money, he will be given a judgment for it. His plea to the jurisdiction is therefore denied. He is hereby granted leave to appear in the pending cases within twenty days from this date to assert and defend such interests as he may claim in the subject matter involved in the cases.
It is so ordered.
Public No. 395.