Stennick v. Jones

258 F. 990, 169 C.C.A. 671, 1919 U.S. App. LEXIS 1322

Opinion

PER CURIAM.

Upon further consideration of the matter, we hold that when an accounting is had the item of $50,000 referred to in the memorandum opinion (256 Fed. 354, - C. C. A. -) filed as an addendum to our original opinion (252 Fed. 345, 164 C. C. A. 269) should not be allowed as a set-off, for the reason that defendants averred in their answer that they never sought to exorcise any of the options in the contract executed by Dodge and his companies to secure defendants in lending their names for the loan of the $50,000, and that they never attempted to enforce any of the security given them by such contract, and that they “disclaim all rights under or interest in said contract,” and that the claim of Jones and Kribs for the $50,000 has been proved as an unsecured claim agitinst the bankrupt estates, and that the J. K. Lumber Company never has had any interest in or attempted to assert any rights under the contract of security for the loan. Considering these averments, our Judgment is that appellees ought hot to gain any special advantage over other creditors in respect to this $50,000. Appellees’ motion for modified order in respect to costs is denied. Mandate forthwith.