Stearns Paint Manufacturing Co. v. Comstock & McQuiston

96 N.W. 869, 121 Iowa 430

• Court: Supreme Court of Iowa
• Decided: October 20, 1903
• Status: Published

Opinion

WbavbR, J.

On October 24, 1901, the Stearns Paint Manufacturing Company, doing business at Des Moines, Iowa, brought an action, aided by attachment, against Comstock & McQuiston, retail dealers in paints and wall paper at Cedar Eapids, to recover the sum of $2,280 claimed to be due on account for goods sold to said defendants, and in said proceeding obtained the appointment of its own manager, George K. Gibson, as a receiver of the stock and book accounts of the defendants, which had been levied upon under the writ. The receiver took possession of the property on or about October 25, 1901. The inventory of the stock amounted to about’ $2,700, and the credits to about $6,800. Prom' these assets there was realized a total'of $5,945.94, out of which was paid for labor and other expenses $1,971.56. The first report of the receiver, dated January 25, 1902, indicates that the work of the receivership was then practically completed, ex--ept the disposition of a remnant of goods and accounts, for the sale of which authority was asked and granted. Thereafter the service of the receiver, as reported by him, consisted in selling the stock in lump for $1,025; the sale of equity in building for $280.76; and sundry small sales and collections, $120.62. These transactions were finally reported to the court February 26, 1902, showing a net balance in receiver’s hands of $3,971.38. Out of this sum the receiver asked for his personal compensation $375 per mouth for four months; compensation for bookkeeper, three months, at $100, $300; and for attorney’s fees, $300 —and that the remainder be ordered distributed pro rata among the creditors, of whom some twenty-seven had filed claims, to the amount of over $6,000. This report was approved, and the several allowances were made as asked by the receiver. Thereafter application was made on behalf of the creditors to set aside said allowances as excessive, and upon a hearing had thereon the allowance to the receiver was reduced to $1,200, and all other objections, overruled. From this order the creditors appeal.

i. compensa-ceiver. As already stated the receiver is the manager of plaintiff corporation, from which he was receiving a salary of $250 per month during all the time he was acting as receiver in this action. He also admits that during that period he was, at least to some small extent, traveling in the interest of his company, and that he was at home attending a sick child at least one week-The store was also closed one week from Christmas till. New Year’s. The nature of the business, and its extent,, while calling for the services of a reliable man, of some reasonable degree of experience, certainly presents no. feature requiring extraordinary ability or skill. The evidence of the witnesses having experience in that line, and testifying in the case, tends to show that the services of a. receiver, including bookkeeping, in such a case, were fairly worth from $3 to $5 per day, and that the service» of a bookkeeper alone were worth not to exceed $40 to $75-per month. It seems to us very clear that the allowances-upon both these items are éxorbitant. We make no question but the receiver performed the duties of the position faithfully and honestly. It is very possible that his time was worth the munificent sum he demands for it, but the-court must consider, not the value of his services in larger and more important affairs, but their value to the modest, business of which he consented to take charge. We have here a very small stock of goods, and á business presenting no especially serious complications. The greater part of the stock was closed out by a sale in bulk, and the remnant of claims and accounts was disposed of in the same manner. A few contracts taken by the insolvent firm were completed, and one of somewhat larger proportions was assumed by another contractor. The chief part of the work seems to have been done within two months, and final report made within four months, from the date of tlie receiver’s appointment. There were incurred, as we have seen, expenses for various purposes — mostly for labor — to an amount of nearly $2,000. The claims presented by the receiver for his own services and those of his bookkeeper and attorney amount to $2,100, or an aggregate of $4,100, for settling a business involving a gross collection of $5,945, In our judgment, the evidence does not justify the allowance made, and $100 per month for the receiver and $50 per month for the bookkeeper afford ample compensation for the services rendered, and the judgment below will be modified acordingly.

2. practice: notice of appeal. The objection made by appellee to the sufficiency of the showing of notice of appeal is not well taken. We have frequently held that it is unnecessary to set out the notice in full, and that an allegation of due . „ . , . service, if undenied, is sufficient. Augustine v. McDowell, 120 Iowa, 401.

Appellee asserts that some of the creditors named in the appeal have accepted their pro rata shares under the order of distribution made by the district court. This is denied by the appellants, and no record is presented in support of the allegation. The motion for an affirmance without modification as to such creditors is denied.

Modified as above indicated, the judgment of the district court will be affirmed at the cost of the appellee.— Modified and aeeiemed.