In re Shaw

E.D. Pennsylvania

In re Shaw

112 F. 947, 1902 U.S. Dist. LEXIS 408

CourtDistrict Court, E.D. Pennsylvania

DecidedJanuary 13, 1902

DocketNo. 605

StatusPublished

This text of 112 F. 947 (In re Shaw) is published on Counsel Stack Legal Research, covering District Court, E.D. Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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In re Shaw, 112 F. 947, 1902 U.S. Dist. LEXIS 408 (E.D. Pa. 1902).

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Opinion

J. B. McPHERSON, District Judge.

Without regard to the precise situation of the exceptant’s claim against the bankrupt’s estate,—whether it has been continued by the referee for further consideration, or has been already disallowed by him for lack of sufficient proof,—I think it best to end the controversy by a decision of the court on the merits. Giving to the exceptant’s affidavit to his claim all the probative force to which the bankrupt act. may entitle it (In re Shaw [D. C.] 109 Fed. 780), I am decidedly of the [948]*948opinion that the circumstances pointed out by the counsel for the trustee are sufficient to overcome the affidavit, and to leave the claim without adequate support. To use the language of the brief, these circumstances are:

“(1) In the schedule filed the bankrupt does not includé this claim.

“(2) The bankrupt was examined at full length, and made no mention of this claim.

“(3) The present claimant was cognizant of the proceedings, for he was repeatedly in attendance at the meetings, and on one occasion, at least, was examined as a witness in another claim; yet, in spite of this knowledge of the pendency of the proceedings, he preferred no claim and gave notice of none until after the death of the bankrupt.

“(4) The claim appears to be based upon a parol contract, inasmuch as no written contract is alleged, and no copy of a written contract attached to the claim filed.

“(5) The Contract is grossly improbable, inasmuch as it embodies a claim of 20 per cent, of the contract price of such work as might be brought to the shop by customers secured by the claimant, even long after their relations with Mr. Shaw had been established.

“(6) There is nothing in the books or papers of the bankrupt, coming into the hands of the trustee, tending to support the claim.”

In addition to these considerations, it should be observed that much the larger part of the claim is made up of commissions charged on the amount of orders secured for the bankrupt’s business by the exceptant during the years 1897, 1898, and 1899; and, as the adjudication was not entered until May, 1900, the trustee urges against the validity of these charges, and I think correctly urges, the presumption that such an item is usually settled for promptly, and is not allowed to run on for months or years. This' presumption is no doubt rebuttable, but no such evidence was offered by the ex-ceptant. Taking all the evidence together, therefore, direct, negative, and presumptive, I. am unable to find that the claim has been proved. It is accordingly disallowed.

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J. B. McPHERSON, District Judge.

Without regard to the precise situation of the exceptant’s claim against the bankrupt’s estate,—whether it has been continued by the referee for further consideration, or has been already disallowed by him for lack of sufficient proof,—I think it best to end the controversy by a decision of the court on the merits. Giving to the exceptant’s affidavit to his claim all the probative force to which the bankrupt act. may entitle it (In re Shaw [D. C.] 109 Fed. 780), I am decidedly of the [948]*948opinion that the circumstances pointed out by the counsel for the trustee are sufficient to overcome the affidavit, and to leave the claim without adequate support. To use the language of the brief, these circumstances are:

“(1) In the schedule filed the bankrupt does not includé this claim.

“(2) The bankrupt was examined at full length, and made no mention of this claim.

“(3) The present claimant was cognizant of the proceedings, for he was repeatedly in attendance at the meetings, and on one occasion, at least, was examined as a witness in another claim; yet, in spite of this knowledge of the pendency of the proceedings, he preferred no claim and gave notice of none until after the death of the bankrupt.

“(4) The claim appears to be based upon a parol contract, inasmuch as no written contract is alleged, and no copy of a written contract attached to the claim filed.

“(5) The Contract is grossly improbable, inasmuch as it embodies a claim of 20 per cent, of the contract price of such work as might be brought to the shop by customers secured by the claimant, even long after their relations with Mr. Shaw had been established.

“(6) There is nothing in the books or papers of the bankrupt, coming into the hands of the trustee, tending to support the claim.”

In addition to these considerations, it should be observed that much the larger part of the claim is made up of commissions charged on the amount of orders secured for the bankrupt’s business by the exceptant during the years 1897, 1898, and 1899; and, as the adjudication was not entered until May, 1900, the trustee urges against the validity of these charges, and I think correctly urges, the presumption that such an item is usually settled for promptly, and is not allowed to run on for months or years. This' presumption is no doubt rebuttable, but no such evidence was offered by the ex-ceptant. Taking all the evidence together, therefore, direct, negative, and presumptive, I. am unable to find that the claim has been proved. It is accordingly disallowed.

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112 F. 947, 1902 U.S. Dist. LEXIS 408, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-shaw-paed-1902.

Opinion

J. B. McPHERSON, District Judge.

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