269 F. 123 | 8th Cir. | 1920
The appellant, Stalick, filed a claim against the estate of the bankrupt, which was disallowed by the referee in bankruptcy. He petitioned the District Court to review that order. The District Court affirmed the order of the referee, and from that order this appeal is prosecuted. The appellant’s contention is that his claim is for the value of a large amount of whisky which was stolen from him by the bankrupt, and that he is entitled to have his claim allowed, notwithstanding the provisions' of the Constitution of New Mexico forbidding the sale or barter of alcoholic beverages.
On this statement of facts the referee found as a conclusion of law that claims founded solely in tort, and not reduced to judgment before the adjudication in bankruptcy, are not provable claims against the bankrupt’s estate, and disallowed Stalick’s claim. The appellant’s petition for review of the order was submitted to the District Court solely on the referee’s certificate and the argument of counsel, and the District Court made an order finding that, under the facts as disclosed by the referee’s certificate, the cause of action of appellant was in tort, and, if on an express or implied contract, such contract was unenforceable at law, and approved the referee’s order.
Among the debts which may be approved and allowed against the estate of a bankrupt by the provisions of section 63 of the Bankruptcy Act (Comp. St. § 9647a [4]) are those which are “founded upon an open account, or upon a contract, express or implied.” The appellant contends that his claim was provable under this portion of the statute.
It is an established rule in the national courts that if a bankrupt has become unjustly enriched by his embezzlement, larceny, or conversion of the goods of another, the owner may, if he chooses to do so, waive any action of tort that he might have against the bankrupt for such acts, and prove a claim against the bankrupt’s estate for the value of the goods, because the law implies a contractual obligation by the bankrupt to pay the owner therefor. Crawford v. Burke, 195 U. S. 176, 194, 25 Sup. Ct. 9, 49 L. Ed. 147; Tindle v. Birkett, 205 U. S. 183, 186, 27 Sup. Ct. 493, 51 L. Ed. 762; Clarke v. Rogers, 228 U. S. 534, 543, 33 Sup. Ct. 587, 57 L. Ed. 953; Schall v. Camors, 251 U. S. 239, 251, 40 Sup. Ct. 135, 64 L. Ed. 247; Clarke v. Rogers, 183 Fed. 518, 521, 106 C. C. A. 64; Reynolds v. New York Trust Co., 188 Fed. 611, 615, 110 C. C. A. 409, 39 L. R. A. (N. S.) 391; Phelps v. Church of Our Lady Help of Christians, 99 Fed. 683, 684, 40 C. C. A. 72.
But it is also established that a claim for unliquidated damages is not a provable debf, when it arises out of a pure tort, and when there is no breach of an express contract, nor such enrichment of the wrongdoer as may form a basis for an implied contract. Schall v. Camors, supra, 251 U. S. 239, 248, 251, 254, 40 Sup. Ct. 135, 64 L. Ed. 247.
When the appellant alleged a claim in tort, he necessarily denied a contractual relationship between himself and the bankrupt, and the claim was therefore not provable against the bankrupt’s estate. This conclusion is strengthened by the fact that the appellant as a claimant under a contract would be allowed the reasonable value of his goods, while as a claimant in tort he might demand and recover an additional amount as exemplary damages, if the tortious act was wanton, malicious, or oppressive, and the allowance of such enhanced damages would not tend to that equal distribution of the bankrupt’s estate among his creditors which it is the policy of the Bankruptcy Act to attain.
The result we have reached makes it unnecessary to discuss other questions which are presented in the briefs.
The judgment of the District Court will be affirmed.