210 F. 533 | S.D. Ill. | 1914
The claim was evidently made upon the theory of the case of Chicago Sign Painting Co. v. Wolf, 135 Ill. App. 366, affirmed 233 Ill. 501, 84 N. E. 614, 13 Ann. Cas. 369, and Railroad v. Sneed, 99 Tenn. 7, 41 S. W. 364, 47 S. W. 89. These cases hold that an agreement to pay or a payment for corporate stock to be increased at a future time affords no consideration for Dozier’s payment, so far as the corporation is concerned, and that he could recover from it if no rights of creditors were involved.
The claim is presented upon the theory that there was no other consideration for the payment except a promise to deliver the stock when it should be increased, and, such agreement being void as to the corporation, and the latter being the bankrupt, claimant is entitled to file for his payment. It appears, however, from the agreement made between him and the president of the bankrupt that there were four elements to the consideration, Joeing a promise to pay dividends as on regular stock, a promise to pay interest for the advances, a promise to give the claimant’s son every legitimate opportunity to increase in knowledge in the shoe business, or such general business as came before the president of the company, and the issue of stock. The last element of consideration the bankrupt could not bind itself to perform, and upon this the claimant bases his whole right of recovery. The three other elements of consideration were within the power of the shoe company to perform, and they were being performed when bankruptcy occurred. The contract, therefore, was based upon a consideration partly valid and in course of performance, and partly invalid. The valid part was a sufficient and substantial consideration. Alderton v. Williams, 139 Mich. 296, 102 N. W. 753; Washburn v. Wilson, 48 N. Y. Super. Ct. 159; Pittsburg Stove Co. v. Pa. Stove Co., 208 Pa. 37, 57 Atl. 77; 9 Cyc. 370; Harris v. Tyson, 24 Pa. 347, 64 Am. Dec. 661; Jackson v. Jackson, 222 Ill. 46, 78 N. E. 19, 6 L. R. A. (N. S.) 785.
The claimant might have an action for a partial breach of the contract, and might have filed a claim under section 63b of the bankruptcy act for damages on account of such partial breach. He cannot, however, treat the contract as a whole as invalid, as he has done by filing a claim, and recover the money paid by him, on the ground of the want of mutuality of obligation. The referee should have disallowed the claim as a whole.
The decision of the referee shpuld be reversed.