In re Niagara Radiator Co., 164 F. 102

In re Niagara Radiator Co.

164 F. 102

W.D.N.Y.

1908

Check Treatment

HAZEL, District Judge

(after stating the facts as above). The petitioner herein contends, first, that the contract is by its terms non-'Issignable, and any attеmpts by said receiver and trustee to assume lie same were of no effect; and, second, admitting its assignability, *103Jiat the contract was never assumed by said receiver, except as to the contract ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‍for the January shipment, and that the same was never assumed by the trustee.

I think the conclusion of the referee that the contract in question was assignable, and that under section 70a (5) of the bankrupt act (Act July 1, 1898, c. 511, 30 Stat. 565 [U. S. Comp. St. 1901, p. 8451]) the rights of the bankrupt under said contract passed to the trustee was correct. The insolvency of the Niagara Radiator Company did not abrogate the contract, and while the extension of 30 days’ credit after delivery probably involved relationship of trust and confidence, yet at the present time contracts containing no express language prohibiting their assignment — contracts for future deliveries of personal property, and not dependent upon future dealings with the property sold between the parties — are assignable, provided the as-signee stands ready to relieve the vendor from his obligation to make deliveries on credit and offers payment. Nothing is found in the stipulation of facts to indicate that the parties to the contract regаrded that they had entered into a contract containing conditions specifically relating to the ore after delivery. Had it been their intention to enter into a nonassignable contract, they were called upon to provide in terms for its nonassignability, or incorporate therein words from which such intention could be reasonably implied, for the 30-day credit provision, standing alone, could not be considered as evidence of such an intention.

Importance is placed by the petitioner on the case of ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‍Arkansas Valley Smelting Co. v. Belden Mining Co., 127 U. S. 379, 8 Sup. Ct. 1308, 32 L. Ed. 246; but a careful reading of the opinion of the court convinces me that the facts of that case do not make it a controlling precedent. Indeed, the circumstances of the case clearly point out that the rights springing from the contract to deliver lead ore аt the smelting works of the assignor were coupled with dealings of a personal nature, and from which it could fairly be assumed that the contracting parties, having confidence in each other, entered into the specified arrangement. Nеither the price of the ore nor the time of payment was agreed upon, but one of the parties to the contract was to assay it, and in case of disagreement it was to be assayed by a third party, and to fix the price it became necessary that the proportion of lead, silver, silica, and iron in the ore first be ascertained. The pith of thе decision ‘is found in the statement o f the court that the defendant had no security for the payment of the ore between the time of delivery and the ascertainment of the price, and hence there could be no substitution for the original сontracting parties. Here we have an executory contract to make deliveries at a specified time, the price being stated, and 30 days’ credit being given, unaccompanied by any peculiar circumstances or cоnditions.

I think the principle announced in ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‍the cases of Pardee v. Kanady, 100 N. Y. 101, 2 N. E. 885, and New England Iron Company v. Gilbert El. R. R. Co., 91 N. Y. 153, is applicable to the facts set forth in thе stipulation. Here, as in those cases, the receiver and trustee were able and willing to asstime the contract, аnd, notwithstanding the bank*104■ruptcy of the radiator company, were in a situation to pay, and offered to pay, on deliveries of the ore pursuant to the contract. The ability and offer on the part of the. receiver or trustee to рerform the contract, which was not such as to oblige the radiator company to perform •in person, and to pay the contract price on delivery of the ore, was, :in my judgment, sufficient to prevent its abrogation. ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‍The receiver in ¡bankruptcy, having taken possession of the assets of the bankrupt and seasonably exercised his option to adopt the contract, and having given notice that, he would on delivery of the ore pay therefor, succeeded to all the rights of the bankrupt, and the seller became liable upon the agreement for its failure to deliver the ore. United States Trust Co. v. Wabash Co., 150 U. S. 287, 14 Sup. Ct. 86, 37 L. Ed. 1085.

The next point is whether the assumption of the contract by the ¡receiver was subsequently affirmed or ratified in its entirety by the ¡trustee. The petitioner contends that the trustee in fact did not as.-sume the contract, and that the аssumption by the receiver covered ¡only the right to have shipments of,ore made in January. The receiver, on his aрpointment by the court, wrote the petitioner as follows:

“I hereby notify you that I assume as such receiver all the obligations of the Niagara Radiator Company under ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‍the contract, and shall expect you to perform it, hereby agreeing to pay cash on delivery if you so require.”

This language is broad enough to constitute an assumption of the ■contract in its entirety, and is not limited to separate monthly deliveries. Unquestionably the title of the trustee, upon his appointment, rеlated back to the filing of the' petition, and the assumption of the contract by the receiver, by and with the consent of the court appointing him, in the absence of any negative intention by the trustee, must be deemed to have been ratified and confirmed by him. Moreover, his .assumption of the contract appears clearly enough from the stipulation ■of facts, which indicates that in March and April, 1907, he in writing demanded the quotas of iron for those months under the contract. That he did not make formal demand for succeeding quotas is not thought important, as the petitioner undoubtedly understood that the contract in its entirety had been assumed by the receiver.

The order of the referee is affirmed, and the claim of the petitioner is allowed at the sum of $2,299.50.