23 F. Supp. 121 | W.D. Pa. | 1938
On May 3, 1930, the C. I. T. Corporation, under the above' caption, filed its claim with the referee. The second paragraph of the claim reads as follows: “2. That J. S. Keck and Leslie C. Spindler, individually and as partners trading as Keck’s New Garage, the persons against whom a petition for adjudication in bankruptcy has been 'filed, were, at and before the filing of said petition, and still are, justly and truly indebted to said C. I. T. Corporation in the sum of' $18,803.55.”
The succeeding paragraph sets out the consideration of. the debt. By it only a partnership debt was disclosed.
On August 19, 1936, a meeting of the creditors of J. S. Keck, individually, was held for the purpose of examining and passing upon the final account of the trustee. At this meeting the attorney for the C. I. T. Corporation objected to the account, as it did not include his client as one of the individual creditors. He asserted that the second paragraph of the proof, supra, was sufficient to establish a claim against the individual estates of the partners. The' referee ruled against this contention, and at an adjourned meeting refused to admit in evidence a written guaranty of J. S. Keck of the partnership debt. He also refused to allow the amendment of the proof of claim in order that it should disclose a claim against the individual estates of the partners, holding that the request for such allowance was not timely. These rulings of the referee have been, certified to this court for review.
Considered by itself, the second paragraph- of the original proof of claim would be sufficient to indicate a claim against the individual estates of the partners and to bring it within the scope of the ruling in Re Kardos, 2 Cir., 17 F.2d 706, by which an amendment was held proper after the statutory period for filing claims had expired. The facts of the Kardos Case and those of the instant matter, however, are not entirely parallel. In the Kardos matter the claim against the individual had the same foundation as that against the partnership. In the present proceeding the claimant set forth at some length, and with considerable specification, a claim against the partnership. The specific-quality of it tended to contradict the general claim of the second paragraph and to remove from the mind of the trustee any idea that a claim was being made against the estates of the individual bankrupts. But while this lack of notice militates against the claim, it is not the most serious objection to the allowance of it or the amendment prayed. As appears in the proceeding before the referee, the claim against the individuals upon which the C. I. T. Corporation relies is founded upon a written guaranty by each partner. The claim as filed makes no mention of any such instrument. Section 57b of the Bankruptcy Act, 11 U.S.C.A. § 93(b), provides: “Whenever a claim is founded upon an instrument ef writing, such instrument, unless lost or destroyed, shall be filed with the proof of claim.” To effectuate any amendment of claim the guaranty would have to be filed. An effective amendment would in reality be a new claim, invalid under section 57n, as amended, 11 U.S.C.A. § 93(n). See In re G. L. Miller & Co., 2 Cir., 45 F.2d 115, 116, by the same Circuit Court of Appeals which decided In re Kardos.
The referee’s denial of the claim 'as filed, and of the prayer to amend, is sustained.