201 F. 445 | D. Me. | 1912
The certificate of the referee presents for consideration the correctness of his order rejecting the claim of Martin M. MacRae. The proof of claim is as follows:
At the city of New York, state of New York, on the 11th day of January, 1912, came Martin M. MacRae, of No. 527 West 110th street, of New York, county of New York, state of New York, and made oath and says:
That the United Wireless Telegraph Company, against whom a petition for*446 adjudication of bankruptcy has been filed, was at and before the filing of said petition, and still is, justly and truly indebted to said deponent in the sum of two thousand two hundred twelve and lc/ioo ($2,212.16) dollars.
That the consideration of said debt is as follows: Deponent was in the employ of the American De Forest Wireless Telegraph Company as and from on or. about the 1st day of November, 1903, until on or about the 1st day of November, 1906. At the time that deponent left the employ of the said American De Forest Wireless Telegraph Company, that concern owed him for salary, in cash, the amount of, $1,177.94, which, with interest computed at the rate of 6 per cent, per annum to July 24, 1911, amounts to the sum of $1,512.47. And the said American De Forest Wireless Telegraph Company also owed deponent, at the time he left its employ as aforesaid, the sum of $544.93, which sum, however, was, according to agreement, to have been paid by the issuance and delivery to deponent of preferred stock of the American De Forest Wireless Telegraph Company, computed on the basis of the average or prevailing selling price for said stock. That said stock was never issued and delivered to deponent. Wherefore deponent claims he is entitled to be paid the said sum, which, with interest computed thereon at the rate of 6 per cent, per annum to July 24, 1911, amounts to the sum of $699.69, therefore making deponent’s total claim herein, with interest due and payable on the 24th day of July, 1911, amount to the total sum of two thousand two hundred twelve and i«/ioo ($2,212.16) dollars.
On information and belief, that after deponent withdrew from said American De Forest Wireless Telegraph Company, the United Wireless Telegraph Company, now bankrupt, took over said American De Forest Wireless Telegraph Company, assumed the latter’s debts and liabilities, and applied its assets. That said United Wireless Telegraph Company called in the stock of said American De Forest Wireless Telegraph Company, and by due procedure issued stock of the United Wireless Telegraph Company in exchange to holders of the stock of the American De Forest Wireless Telegraph Company.
That deponent thereafter made demand upon the United Wireless Telegraph Company, and was assured by officers thereof that the same should and would be honored.
That no part of said debt has been paid.
That there are no set-offs or counterclaims to the same.
That deponent has not, nor has any person by his order, or, to his knowledge and belief, for his use, received any manner of security for said debt whatever.
That no note has been received therefor, nor any judgment rendered thereon.
The above claim was duly verified by oath.
A sworn proof of claim is prima facie evidence of its allegations, even in case the claim is objected to. Bankruptcy proceedings are somewhat summary, in their character, and the proof of claim is regarded as a deposition rather than as pleading. It has the force of evidence. Whitney v. Dresser, 200 U. S. 532, 535, 26 Sup. Ct. 316, 50 L. Ed. 584; In re Sumner (D. C.) 101 Fed. 224; In re Shaw (D. C.) 109 Fed. 780; In re Cannon (D. C.) 133 Fed. 837; In re Carter (D. C.) 138 Fed. 846; In re Saunders, 2 Lowell, 444, 446, Fed. Cas. No. 12,371; In re Baumhauer (D. C.) 179 Fed. 966, 967. In the Castle Braid Co. Case (D. C.) 145 Fed. 224, 228, in discussing the force of allegations in proofs of claim, Judge Ray, o’f the Southern district of New York, said:
“The allegations of the proofs of claim are to be taken as true. If they set forth all the necessary facts to establish a claim, and are not self-contradictory, prima facie, they establish the claim, even in the presence of objec*447 tions; and the objector is then called upon to produce evidence and show facts tending to defeat the claim, of probative force equal to that of the allegations of the proofs of claim. The burden of proof is always on the claimant.; but, as probative force is given to the allegations of the proofs of claim, and no probative force is given to the objections, this must be met, overcome, or at least equalized, by the objecting party.”
The trustees contend that, while a proof of claim is prima facie evidence of its allegations, such allegations in the claim now in question are not sufficient to constitute a valid proof of claim, in that they fail to adequately state the claim andl the consideration therefor, as required by section 57a of the Bankruptcy Act (Act July 1, 1898, c. 541, 30 Stat. 560 [U. S. Comp. St. 1901, p. 3443]). _
In the first item of the proof of claim before me the deponent makes oath that he was in the employ of the American De Forest Telegraph Company “from on or about November 1, 1903, to on or about November 1, 1906,” andl that the amount of $1,177.94 was due him for salary when he left the company’s employ. It appears, then, by the verified claim, that the deponent was an officer under a salary; but it does not appear what the character of his employment was. The deposition does not show what the officer did to earn his money; no distinct consideration is, given. The proof of claim before me is not so specific as in the Scott Case, for there the proof alleged “legal services,” or services of a lawyer; but in the case at bar even such description of the character of the employment is not given. In The Goble Boat Co. (D. C.) 190 Fed. 92, the proof contained a statement of the claim, and of its consideration, more specific than that in the case at bar. The proof in that case stated a claim for compensation for “labor as manager of the plant”; but the court held it defective. It seems to me clear that this item of the proof before me does not state the character of the services, and the consideration for them, in so full and specific a manner as to enable creditors to pursue a proper and legitimate inquiry as to the fairness and legality of the claim.
The second item of the proof of claim sets forth that the American De Forest Wireless Telegraph Company also owed deponent, at the
I am constrained to hold that the deponent in this case has set forth a mere statement of claim, but not a “proof” of claim, within the meaning of the Bankruptcy Law.
“The ease under consideration suggests another question, namely, whether Whitney v. Dresser applies to a situation where the proof of claim is sworn to by a person who makes the affidavit, not upon the primary knowledge which a creditor himself may be fairly supposed to possess, but upon secondary evidence, such as the information to which the trustee of a bankrupt creditor is ordinarily confined. In other words, while an ex parte affidavit by one having personal knowledge of the facts is to carry a presumption of validity, shall a similar presumption be extended to an affidavit made by one who is only repeating information obtained from others?”
I have disposed of the matter before me on another point, and there is perhaps no occasion for me to decide the question relating to the allegation upon information and belief. But, as the practice of the court is involved in it, I think it well to say that in my opinion the
The deponent further says that:
“He thereafter made demand upon the United States Wireless Telegraph Company, and was assured by the officers thereof that the same [namely, the debt stated] should and would be honored.”
This allegation is not, in my opinion, an affirmative statement of the transfer of the debts and liabilities of the American De Forest Company to the Wireless Company. A statement of assurance by the officers that the same should and would be honored is not a formal allegation of the transfer of the debt to the Wireless Company, and of its assumption of such debt. It is still true that the vital fact of the transfer of the claim from the American De Forest Company to the United Wireless Company, and the assumption of same by the United Wireless Company, is stated only on information and belief.
The certificate of the referee, rejecting the claim of Martin M. Mac-Rae, is affirmed.