In re Rubel

Decision Date26 August 1908
Citation166 F. 131
PartiesIn re RUBEL et al.
CourtU.S. District Court — Eastern District of Wisconsin

This is a review of the decision of the referee upon the claim of Edwin H. Abbot for damages for an alleged unlawful taking of the premises by the receiver and trustee for the use of the estate. The bankrupts were in possession under a three years' lease at a rental of $1,300 per annum, payable in monthly installments of $108.33. The lease had a year to run from the 1st day of May, 1907.

The involuntary petition was filed March 30, 1907. On the same day a receiver was appointed, who took possession of the stock of goods and the store. April 10th the petitioner served a notice to quit upon the bankrupts and the receiver. On the 15th of April the petitioner made an application to the referee asking that the receiver surrender the premises which application was denied. On April 12th the adjudication took place. To facilitate prompt administration, the court made an order that the receiver take an inventory and appraisal of the stock of goods, which was done. On the 29th of April the trustee was appointed. On April 30th the trustee sold out the stock of goods in bulk, and abandoned the store handing the keys over to the purchaser, instructing him to make terms with the petitioner.

The petitioner shows, and the referee finds, that he had a bona fide opportunity to rent the store in April while the receiver was in possession, but lost the opportunity because he could not engage to deliver possession by the 1st day of May; that all business property is rented from the 1st day of May in Milwaukee; that, notwithstanding diligent efforts in that behalf, he was unable to rent the store until the 1st day of May, 1908; that the rental of the store during the time it remained vacant was reasonably worth more than the rent reserved by the lease to the bankrupt; that by reason of remaining vacant the premises deteriorated. So that altogether the petitioner claims damages for some $2,600 upon the theory that the occupation by the receiver and trustee was tortious.

The referee allowed the claim for the March installment of rent $108.33, and also allowed the petitioner the further sum of $108.33, being one month's rent for the time the store was occupied under the orders of the court, as a part of the expenses of the administration, and declined to make any further allowance, and dismissed the petition as to unliquidated damages.

Edwin H. Abbot, Jr., Howard Morris, and C. M. Morris, for petitioner.

Cary, Upham & Black, for trustee.

QUARLES District Judge (after stating the facts as above).

The text-books and the authorities all seem to concur in the proposition that rent upon such a lease which has not accrued at the time of adjudication cannot be proven as a claim in bankruptcy. Loveland on Bankruptcy (3d Ed.) 265, 268; Collier on Bankruptcy, 479; In re Jefferson (D.C.) 93 F 948; Bray v. Cobb (D.C.) 100 F. 270; Atkins v. Wilcox, 105 F. 595, 44 C.C.A. 626, 53 L.R.A. 118; In re Hays and Foster (D.C.) 117 F. 879; Watson v. Merrill, 136 F. 359, 69 C.C.A. 185, 69 L.R.A. 719. These authorities are not in accord as to the method of reasoning by which the conclusion is reached. Some of them hold that the adjudication destroys the relation of landlord and tenant, and practically annuls the lease. Others hold that the claim, not being provable in bankruptcy, is not affected by the discharge; that the bankrupt remains bound by his covenant, but that the trustee is not bound thereby. It is conceded on all hands that the trustee has a reasonable time after his appointment to determine whether he will adopt...

To continue reading

Request your trial
13 cases
  • Bloch v. Bell Furniture Co.
    • United States
    • New Jersey Court of Chancery
    • 4 de dezembro de 1931
    ...contingent upon uncertain events. Watson v. Merrill, supra; Atkins v. Wilcox, 53 L. R. A. 118, 44 C. C. A. 626, 105 F. 595. Also Re Rubel (D. C.) 166 F. 131; Re Mahler (D. C.) 105 F. 428; Re Hays, F. & W. Co. (D. C.) 117 F. 879; Re Arnstein (D. C.) 101 F. 706; Re Jefferson (D. C.) 93 F. 948......
  • In re Roth & Appel
    • United States
    • U.S. Court of Appeals — Second Circuit
    • 2 de agosto de 1910
    ...are contingent upon uncertain events. Watson v. Merrill, supra; Atkins v. Wilcox, 105 F. 595, 44 C.C.A. 626, 53 L.R.A. 118. Also In re Rubel (D.C.) 166 F. 131; In re Mahler (D.C.) 105 F. 428; In re etc., Co. (D.C.) 117 F. 879; In re Arnstein (D.C.) 101 F. 706; In re Jefferson (D.C.) 93 F. 9......
  • In re Spies-Alper Co.
    • United States
    • U.S. District Court — District of New Jersey
    • 29 de março de 1916
    ... ... held that it was not, because, as he considered, it was for ... 'rent to accrue after the filing of the petition in ... bankruptcy,' which he held was not provable, on the ... authority of Watson v. Merrill, 136 F. 359, 69 ... C.C.A. 185, 69 L.R.A. 719 (C.C.A. 8th Cir.); In re ... Rubel, 166 F. 131 (D.C.E.D ... [231 F. 540.] ... Wis.) ; ... and In re Roth & Appel, 181 F. 667, 104 C.C.A. 649, ... 31 L.R.A. (N.S.) 270 (C.C.A. 2d Cir.). In the first place, it ... should be noted that the doctrine of those cases has not ... prevailed in this circuit to its full ... ...
  • In re Inman & Co.
    • United States
    • U.S. District Court — Northern District of Georgia
    • 7 de junho de 1909
    ...under the present bankruptcy act. The latest decision I have seen on this question of the right to recover rent not due is In re Rubel et al. (D.C.) 166 F. 131. The case decided by Judge Quarles of the District Court for the Eastern Division of Wisconsin. In that opinion it is said: 'The te......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT