Snow v. Russel Coe Fertilizer Co.

11 N.Y.S. 492, 65 N.Y. Sup. Ct. 134, 33 N.Y. St. Rep. 959, 58 Hun 134, 1890 N.Y. Misc. LEXIS 2189

• Court: New York Supreme Court
• Decided: October 24, 1890
• Status: Published

Opinions

Barrett, J.

I agree with Mr. Justice Bartlett that the promise alleged to have been made by Davidge to Nichols & Co. is not enforceable by the-receiver as the representative of the company, or of its stockholders generally; but I cannot concur in the conclusion that such promise is enforceable by the-receiver as the representative of Nichols & Co. The receiver does not represent any particular creditor, nor has he any privity in the disputes between-individual creditors growing out of special arrangements between themselves, such as are set up in this proceeding. If Nichols & Co. are entitled to exclude Davidge, or to take for themselves the w'hole or any part of the dividend coming to him, they must act directly. The receiver‘cannot, for their benefit, avail himself of any estoppel which may have inured to them. But, further, I am of opinion that no case for Davidge’s exclusion, even as against Nichols & Co., has been made out. The agreement on that head is too vague- and indefinite for enforcement. Nichols & Co. did not bind themselves to refrain from proceeding against the company for any given period, nor was-the period of Davidge’s forbearance, with regard to his salary, stipulated. There was neither a valid consideration nor mutuality. Now that the company is in the hands of a receiver, I can see no good reason for discriminating-between these creditors. They should share alike. Davidge’s claim, however, is only for the sum of $1,945.87, that being the amount which had accrued at the date of the appointment of the temporary receiver. The order should be reversed, and the receiver directed to admit Davidge’s claim to the above-extent as valid, and to pay it pro rata with the other claims against the com-' pony.