In re Alfred Kessler & Co.

176 F. 647, 1910 U.S. Dist. LEXIS 400

• Court: District Court, S.D. New York
• Decided: February 25, 1910
• Status: Published

Opinion

HAND, District Judge

(after stating the facts as above). There are two points upon both of which the petitioner must succeed in order to succeed upon the appeal. He must first show that a proof of claim need not contain in writing any indication that it is a claim against the bankrupt estate; and, second, if he succeeds upon that point, he must show that the conversation between the trustee, then the receiver, and Mr. McCurdy estopped the trustee from denying that some sort of claim’had been filed.

I do not think it is necessary to make any decision upon the first point, although I can see many evils which would arise from permitting oral testimony to show that some of the papers, which came into the hands of the trustee, he agreed to treat as proofs of claim. When the Congress says that the proof of claim must be in writing, it must mean that there are certain essential elements without which it is no “claim” at all. I should think that one of those elements must be some indication in the writing that the “claim” is a demand against the bankrupt estate. No case goes so far as to remove that essential. However, I make no decision upon that question because it is not necessary.

The most that the petitioner can claim is that because of the conversation between the trustee, then receiver, and Mr. McCurdy, the trustee consented that the petitioner’s statement and letter, which he had received with the other papers from the assignee, should stand in the place of a proof of claim. If any paper is to be treated as a proof of claim which the parties agree on, I am certainly of opinion that the oral testimony on which the parties rely must be clear and explicit. The trustee has no recollection of the conversation; but, assuming that Mr. McCurdy’s recollection is accurate, it by no means goes far enough to show that the trustee consented to accept the papers in lieu of a formal proof of claim. He was asked whether he had received them from the assignee, and he said that he had, and that they were all right. At the time when this conversation took place, no trustee had been appointed, and no adjudication had taken place. No proof of claim could have been filed. It is inconceivable to my mind that either party to the' conversation could have intended that the papers referred to should stand in lieu of a proof of claim. The receiver did not know that he would be elected trustee; he did not know that there would be an adjudication. It would have been rash and improper for him to have agreed, on behalf of the future trustee and in the event of a future adjudication, that any existing papers should have stood in place of a proof of claim. I do not even mean to decide that such an agreement would have bound the estate, though the receiver was subsequently made trustee; but I do mean to decide that it would be most unreasonable to construe the language used as intended by the parties to constitute so certain an agreement as must exist, if this paper is by estoppel to be construed as a proof of claim.

Therefore, the proof falls short, in my opinion, of an agreement that the papers should stand as a proof of claim. Assuming all that Mr. McCurdy says to be true, it would be an extreme thing to infer from it any intention to do more than ascertain whether the petitioner’s account was in the receiver’s hand. But at the least the petitioner must go further and show that at some time the creditor agreed with the trustee that the paper, which did not purport to be a claim against the estate, should be treated as such. Otherwise it would be enough to show that the bankrupt’s books contained the claim in full to dispense with any proof of claim. I am assuming for the sake of argument that it would be enough even if the creditor should agree with the trustee that the account in the ledger should stand for a claim. The petitioner cannot ask more than that, and he fails even to establish that.

Order affirmed; petition denied.