On October 30, 1907, the firm of Kessler & Co. made an assignment for the benefit of creditors to William Williams, who next day sent out a printed circular to the creditors. Heine & Co., bankers in Paris, received a copy, and promptly on such receipt sent (November 12, 1907) to Williams’ assignee an account in detail of their transactions with Kessler & Co. showing a balance ow
On November 8, 1907, petition in bankruptcy was filed, and on November 11th a receiver was appointed, who on Decemer 30, 1907, was elected trustee. The books and records of the bankrupts, including the letter and account received from Heine & Co., were turned over by Williams to the receiver, and have since remained in his possession as receiver or as trustee. Shortly thereafter, and about. November 30, 1907, Mr. Delos McCurdy, a member of the bar, at the request of Heidelbach, Ickelheimer & Co., called on the receiver and asked him if he had received from the assignee a claim of Heine & Co. in Paris against the bankrupt estate. The receiver stated that the papers that had come over were still in confusion, but that if he would come in a day or two afterwards he would tell him accurately about it. A day or two afterwards Mr. McCurdy called again and asked the receiver if that claim was received from the assignee. He said it was. Mr. McCurdy asked him if it was all right, and he said it was. The witness sajrs:
“He asked some person there with respect to the matter, and’ the person made the reply, and he turned to me and said, ‘It is all right.’ ”
It may fairly be presumed that Heidelbach, Ickelheimer & Co. communicated the result of Mr. McCurdy’s interview to Heine & Co. It would seem from statements in one of their letters that subsequently they received from time to time comrnunications emanating from the District Court, Southern District of New York. There seems no reason to doubt that they, in good faith, supposed that they had duly filed a proper claim, until they were advised by the trustee, in the summer of 1909, that no claim filed by them was found upon the list. The trustee had sent out a circular to “all creditors and parties in interest, in September, 1908, asking them to examine and see if their claims were filed with the referee.”
It was held by the Supreme Court in J. B. Orcutt Company v. Green, 204 U. S. 96, 27 Sup. Ct. 195, 51 L. Ed. 390, that presentation .and delivery of claims to the trustee is sufficient:
“Having been received by the trustee, under authority of law, the proofs •of debt are thereby sufficiently filed so far as creditors are concerned, and it is the duty of the trustee to deliv.er them to the referee. If the trustee inadvertently neglects to perform that duty, it is the neglect of an officer of the court, and the creditors are in no way responsible therefor.”
The referee correctly says that:
“The question here is whether the court has the power and right to grant the creditors the relief they ask.”
It would be harsh and inequitable to refuse them relief upon the statement of facts above recited, if there were power to grant it. It is not disputed that the papers sent to the assignee, and by him turned
“Courts of bankruptcy, like courts of admiralty, permit amendments with a most liberal band; and as there was enough in the original proof by which to amend, and as the District Court thought it was equitable to allow the amendment, the appeal cannot be maintained.”
This decision was affirmed in the Supreme Court. Hutchinson v. Otis, 190 U. S. 552, 23 Sup. Ct. 778, 47 L. Ed. 1179. In a cause before this court (In re Roeber, 127 Fed. 122, 62 C. C. A. 122), the District Judge had, subsequent to the year, allowed an alleged proof of claim to be amended. It was inartificially drawn, but contained aver-ments that there was due and owing to creditors a stated sum, for materials furnished to the bankrupt in the erection of a building, and that a certain sum of money was security therefor. It was not signed by the creditor, nor was it verified, nor did it contain any statement of payments. The amendment supplied these defects, and we affirmed the District Judge, saying:
“Bankruptcy courts have the usual powers of courts of justice, upon motion and for good cause, to allow amendments. All parties were advised of the claim within the year. There is no' dispute that the amount claimed is justly owing from the bankrupt. The amendment was in furtherance of justice, and within a legitimate exercise of the power of amendment.”
See, also, Bennett v. American Credit Indemnity Company, 159 Fed. 624, 86 C. C. A. 614.
We do not understand that the District Judge refused to allow the amendment as an exercise of discretion, hut did so because he was not satisfied that the testimony showed that there had been filed within the year a written statement which contained “enough by which to amend.” The account and letter sent by Heine & Co., showed the details of transactions with Kessler & Co., and that the result of those transactions was that the latter firm was indebted to the former in a stated sum. We do not concur with the conclusion that it did not contain in writing any indication that it is a claim against the bankrupt estate. It was not sent until after assignment, and was expressly sent, not to Kessler & Co., but to the assignee as a claim against their estate. It did not contain any statement in reference to security, nor was it verified, nor was it in the form prescribed; but it certainly notified the assignee and — when it was by him turned over to the
As to what took place at the interview between Mr. McCurdy and the receiver, we do not understand that it is contended that what took place then estops the receiver and trustee from disputing the sufficiency as a proof of claim of the original papers to which his attention was then called; but it does show that on November 30, 1907 (or thereabouts), he had in his possession a claim of some sort, in-artificially drawn, to which his attention was specifically directed by a messenger from Heine & Co., and which, under J. B. Orcutt & Co. v. Green, supra, he should! thereafter have transmitted to the referee to pass upon its sufficiency. Moreover in view of what took place at the interview, it cannot, we think, be contended that Heine & Co. were negligent, or guilty of any laches, in not moving to amend until after the year had elapsed.
The order is reversed, and cause remitted, with instructions to allow the amendment prayed for.