In re Irving Whitehouse Co.

E.D. Washington

In re Irving Whitehouse Co.

291 F. 700, 1923 U.S. Dist. LEXIS 1460

CourtDistrict Court, E.D. Washington

DecidedJuly 18, 1923

DocketNo. 3812

StatusPublished

This text of 291 F. 700 (In re Irving Whitehouse Co.) is published on Counsel Stack Legal Research, covering District Court, E.D. Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re Irving Whitehouse Co., 291 F. 700, 1923 U.S. Dist. LEXIS 1460 (E.D. Wash. 1923).

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Opinion

NETERER, District Judge

(after stating the facts as above). [1] Equity will treat alike those similarly situated, In re Toole (C. C. A.) 274 Fed. 342. Creditors of equal equities are in the same class, and the omission of some to make specific claims does not enlarge the rights of such as do make claims (In re Pierson, 233 Fed. 519, 147 C. C. A. 405), since the claimants must recover on the strength of their own title (In re Pierson, supra; Duel v. Hollins, 241 U. S. 523, 36 Sup. Ct. 615, 60 L. Ed. 1143; In re J. C. Wilson & Co. [D. C.] 252 Fed. 631). The securities “lacked individuality, and like fac simile storage for gold coin could properly be treated as indistinguishable tokens of identical value,” when issued by the same obligor. Duel v. Hollins, supra.

There are several classes of claimants, but I think, under the stipulation, those holding securities of the same class stand in the same relation to the fund which they claim. As between the claimants [702]*702there is no difference between the fully paid and the partially paid securities, since the sale in either event was complete and title vested, and unpaid securities being held as collateral does not change the status. It is unnecessary to determine whether Dane and Theis had traced their stock into the fund in issue, in view of the conclusion arrived at; the holders of a particular security being in a separate class. Duel v. Hollins, supra. Each petitioner is therefore entitled to recover the pro rata of the fund as the security held by him bears to the total of such security sold by the receiver issued by the same obligor. The holdings as per stipulation are as follows: Ackerman, Leow’s Theatre, 100 shares; Stephens, New Cornelia, 30 shares; Wittmer, Middlestate Oil, 52% shares; Mable Connor; Northern Pacific, 5 shares; Maud Mower, Northern Pacific, 23 shares; Lantor, Northern Pacific, 20 shares; Woodland, Northern Pacific, 15 shares; Hazel Mower, Northern Pacific, 5 shares; Rubber, 5 shares, 1 $1,000 Chicago, Milwaukee &'St. Paul bond, maturing in 1925, 1 $1,000 Chile Copper bond, maturing 1923; Ream, Pure Oil, 50 shares; Hodgman, Chicago, Rock Island & Pacific, 5 shares; Theis, American Hide & Leather, 30 shares; Lane, $2,000; International Telegraph, Sales & Engineering bond; Howell, General Electric, 10 shares. The amount due from the respective holders of named securities which has not been paid shall be deducted from the amount due each and retained by the trustee. I do not think that Lane or others are estopped from asserting this cíaim, because they filed a general claim.

The order of the referee is set aside, and the matter is referred to the referee to make the computations, and order of allowance as indicated.

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NETERER, District Judge

(after stating the facts as above). [1] Equity will treat alike those similarly situated, In re Toole (C. C. A.) 274 Fed. 342. Creditors of equal equities are in the same class, and the omission of some to make specific claims does not enlarge the rights of such as do make claims (In re Pierson, 233 Fed. 519, 147 C. C. A. 405), since the claimants must recover on the strength of their own title (In re Pierson, supra; Duel v. Hollins, 241 U. S. 523, 36 Sup. Ct. 615, 60 L. Ed. 1143; In re J. C. Wilson & Co. [D. C.] 252 Fed. 631). The securities “lacked individuality, and like fac simile storage for gold coin could properly be treated as indistinguishable tokens of identical value,” when issued by the same obligor. Duel v. Hollins, supra.

There are several classes of claimants, but I think, under the stipulation, those holding securities of the same class stand in the same relation to the fund which they claim. As between the claimants [702]*702there is no difference between the fully paid and the partially paid securities, since the sale in either event was complete and title vested, and unpaid securities being held as collateral does not change the status. It is unnecessary to determine whether Dane and Theis had traced their stock into the fund in issue, in view of the conclusion arrived at; the holders of a particular security being in a separate class. Duel v. Hollins, supra. Each petitioner is therefore entitled to recover the pro rata of the fund as the security held by him bears to the total of such security sold by the receiver issued by the same obligor. The holdings as per stipulation are as follows: Ackerman, Leow’s Theatre, 100 shares; Stephens, New Cornelia, 30 shares; Wittmer, Middlestate Oil, 52% shares; Mable Connor; Northern Pacific, 5 shares; Maud Mower, Northern Pacific, 23 shares; Lantor, Northern Pacific, 20 shares; Woodland, Northern Pacific, 15 shares; Hazel Mower, Northern Pacific, 5 shares; Rubber, 5 shares, 1 $1,000 Chicago, Milwaukee &'St. Paul bond, maturing in 1925, 1 $1,000 Chile Copper bond, maturing 1923; Ream, Pure Oil, 50 shares; Hodgman, Chicago, Rock Island & Pacific, 5 shares; Theis, American Hide & Leather, 30 shares; Lane, $2,000; International Telegraph, Sales & Engineering bond; Howell, General Electric, 10 shares. The amount due from the respective holders of named securities which has not been paid shall be deducted from the amount due each and retained by the trustee. I do not think that Lane or others are estopped from asserting this cíaim, because they filed a general claim.

The order of the referee is set aside, and the matter is referred to the referee to make the computations, and order of allowance as indicated.

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291 F. 700, 1923 U.S. Dist. LEXIS 1460, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-irving-whitehouse-co-waed-1923.

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