230 F. 362 | 6th Cir. | 1916
On July 13, 1914, J. Bacon & Sons, a merchandising corporation of Louisville, Ky. (one of 23 corporations controlled by or associated with the H. B. Claflin Company of New York), was adjudged bankrupt. It owed only about $50,000 of merchandise claims, but wás liable on notes aggregating more than $2,300,000 held by various parties — much of the latter being paper of the H. B. Claflin Company. At the request of the general creditors, the bankrupt’s business was carried on by the trustee until the confirmation of the offer of compromise later mentioned, occupying for the purpose premises under lease to the bankrupt' at an annual rental of $30,600.
On March 5, 1915, about 8% months after bankruptcy, as a result of the efforts of the note holders’ committee appointed by the creditors of the 24 associated corporations (including the H. B. Claflin Company), the bankrupt offered in writing (filed with the referee) a composition “at 35 per cent, of the claims of its creditors, allowed or to be allowed, except those entitled to priority.”
On April 24th the composition was confirmed. The referee, whose term of office had expired March 29th, then moved the court to allow his compensation under the Bankruptcy Act as claimed in his certificate of the proposition of composition, including 1 per cent. ($306) on one year’s rent under the lease before mentioned, $186.55 expenses of administration (not opposed), $169.43 of miscellaneous fees (not opposed), and $4,159.35, as one-half of 1 per cent, upon $831,870.40, which was 35 per cent, of the claims of creditors.
Upon objection of the bankrupt and the note holders’ committee, the court disallowed the commission claimed on confirmation of the composition, except as respects the $30,000 actually deposited with the referee (allowing to the referee’s successor the entire of that commission — $150), and allowed the commission on rentals only to the amount of $27.15, being-1 per cent, of the amount of rent paid previous to the authority given the trustee to conduct the business. This review involves the propriety of the referee’s charge for commissions on (a) the entire amount payable to creditors under the composition offer, and (b) one year’s rentals (except to the extent on which the commission of $27.15 was allowed).
We think that to the extent it was rejected by the District Judge it was clearly of the latter class. True, under the Kentucky statute the lessors had a lien upon the bankrupt’s personalty upon the leased premises for one year’s rent (Courtney v. Trust Co. [C. C. A. 6] 219 Fed. 57, 134 C. C. A. 595); but the trustee had nevertheless the right to the use of the premises by virtue of the lease (Courtney v. Trust Co., supra, 219 Fed. at page 67 [134 C. C. A. 595]), and so long as he paid the rent, and had such use, it is immaterial that even in the absence of such use the rent could have been collected, and would have been a prior debt to the extent at least of effecting a prior lien. The
Section 12b of the Bankruptcy Act permits the filing of application for confirmation when the composition has been accepted by a majority of creditors in number and amount, “and the consideration to' be paid by the bankrupt to his creditors, and the money necessary to pay all debts which have priority and the cost of the proceedings, have' been deposited in such place as shall be designated by and subject to' the order of the judge.” This in the ordinary case means a deposit somewhere sufficient to pay in full the costs of the proceedings and debts having priority (and so payable in full), together with whatever the creditors are to receive by virtue of the composition. But the “consideration to be paid by the bankrupt to his creditors” may or may not be cash. A bankrupt usually does not have enough ready money of his own to carry out a composition. The “consideration to be paid”' may be the bankrupt’s notes, secured or even wholly unsecured, or his mere promise to pay in the future a given amount. 2 Loveland on Bankruptcy (4th Ed.) p. 1264: It is common knowledge that compositions sometimes contemplate the taking by creditors of stock or securities under a reorganization, as in the arrangement under consideration in Re Kinnane (D.. C.) 221 Fed. 762.
It is, we think, also clear that such “consideration” need not be. actually deposited with the court. True, the statute requires that it “be deposited in such place as shall be designated by and subject to the order of the judge,” thus plainly permitting a deposit of notes or other evidences of debt, secured or unsecured, with any approved depositary. But this deposit is for the sole benefit of the creditors concerned, and there can, we think, be no doubt of the power of such creditors to yvaive actual deposit of money or securities. This waiver of deposit was made. But a mere waiver of deposit wás not a waiver of the payment by the bankrupt to tire creditors of the amount agreed to be paid under the composition. On the contrary, the note holders’" committee’s acceptance of the composition offer (filed contemporane
We think the meaning of the term “amount to be paid to creditors,” on which the commission of one-half of 1 per cent, is to be computed, means the amount which creditors are to receive by virtue of the composition agreement. The amount offered by the bankrupt and accepted by the creditors became, upon confirmation, “the amount to be paid creditors.” This construction not only seems logically to result from the consideration to which we have already referred, but receives additional confirmation when consideration is given to the difference between the language “on all moneys disbursed to creditors by the trustee” (on which the 1 per cent, commission is to be computed in the case of a fully administered estate) and the “amount to be paid lo creditors ” on which one-half of 1 per cent, is to be paid in case of composition — not requiring complete administration. The authorities
We may add that the record furnishes no reason to apprehend that the note holders have lost the power to get the benefit of the composition percentage. The testimony is undisputed that the chairman of the note holders’ committee is president of a new corporation (formed previous to the composition proceedings) which owns the capital stock of the bankrupt. On the latter’s objection tire court excluded testimony offered by the referee (evidently deeming it immaterial) that the bankrupt’s capital stock was so purchased by the note holders’ committee at a sale of the H. B. 'Claflin Company’s assets, in pursuance of á plan of reorganization under which such note holders would receive notes of the new corporation for 85 per cent, of their debt, 15 per cent, to be paid in cqsh, tire remainder to be secured by capital stock of the bankrupt company. The referee’s uncontroverted affidavit of April 26th (from which the quotation contained in the fore
The conclusion we have reached makes it unnecessary to consider the question of “constructive disbursement” discussed by counsel.
The request (although made before the composition proceeding was certified to the District Judge) was not presented until after the claims had been voted in favor of accepting the composition offerthe withdrawal asked was for the purpose of lessening to that extent the referee’s compensation; the District Judge has not considered the question, and a direct review by the court of the referee’s ruling has not been asked. The only attempt to bring it before the court was collaterally, by way of response to the referee’s petition for compensation.
The order complained of will be affirmed so far as concerns the commission upon rentals, and reversed as respects the commission under section 40a, and the record remanded to the District Court with directions to allow the referee’s commissions upon the basis prescribed herein, and to take further proceedings not inconsistent with this «pinion. The petitioner will recover his costs of this court.
All italics in this opinion are ours.
Bray v. Johnson et al. (C. C. A. 4) 166 Fed. 57, 91 C. C. A. 643; In re Columbia Cotton Oil Etc. Co. (C. C. A. 4) 210 Fed. 824, 127 C. C. A. 374; In re Meadows (C. C. A. 2) 211 Fed. 948, 128 C. C. A. 446; In re Breakwater Co.’s Estate (C. C. A. 3) 224 Fed. 333, 140 C. C. A. 19.
The District Judge in his findings of fact treats as true (although regarding immaterial) the statement of the referee, in his report recommending composition, that, during the entire period between July 13, 1914, and March 30, 1915, when his term of office expired, he “was required to, and did, perform services as referee in said matter almost daily, with the exception of Sundays and a few days when the undersigned was absent from said district; that the aforesaid services by the undersigned, as referee, were required by reason of the fact that the conduct of the business of said bankrupt was being continued pursuant to the request of the creditors of the bankrupt; that matters were continually arising on said proceeding which required action by the undersigned, as referee; and that the undersigned, as referee, examined and countersigned approximately 6,000 checks, aggregating in amount $900,-000, which were drawn by said receiver or trustee to pay the expenses of the conduct of said business during the aforesaid period.”