In re West Counties Construction Co.

• Decision Date: 01 February 1950
• Docket Number: No. 9921.,9921.
• Citation: 179 F.2d 467
• Parties: In re WEST COUNTIES CONSTRUCTION CO. WALKER v. WEST COUNTIES CONSTRUCTION CO.
• Court: U.S. Court of Appeals — Seventh Circuit

179 F.2d 467 (1950)

In re WEST COUNTIES CONSTRUCTION CO. WALKER v. WEST COUNTIES CONSTRUCTION CO.

No. 9921.

United States Court of Appeals Seventh Circuit.

February 1, 1950.

Frank A. McCarthy, John E. Toomey, John J. Moran, Chicago, Ill., for appellant.

Isaac E. Ferguson, Ben Rothbaum, Chicago, Ill., Benjamin F. Morrison, Chicago, Ill., for appellee.

Before MAJOR, Chief Judge, and DUFFY and FINNEGAN, Circuit Judges.

DUFFY, Circuit Judge.

Debtor's business was and is the operation of a stone quarry near Elgin, Illinois, producing road stone and agricultural limestone. On April 26, 1948, the Circuit Court of Kane County, Illinois, appointed Herbert Cameron as temporary and later as permanent receiver in a proceeding involving debtor pending in that court. Upon notice given to all creditors of the debtor that court on August 20, 1948, authorized the receiver "to make a loan of not to exceed $20,000.00 upon the stockpiles" of stone accumulated at debtor's plant. The court authorized the receiver to pay a commission of $1,000 to obtain the loan, and to pay 6% interest thereon. It also directed the receiver to settle and adjust the claim of the Pennsylvania Crusher Company for the sum of $4,232.50, as such company was threatening foreclosure on a crushing machine then being used by the debtor. Among other things the order also directed the receiver to pay current bills accumulated since his appointment in the operation of the plant, and to repay money borrowed and advanced by him.

Petitioner Fred R. Walker loaned $20,000 to the receiver who executed a promissory note and a chattel mortgage pledging a stockpile of 30,000 tons of agricultural limestone and 7,000 tons of road stone located at the plant of debtor. Although the chattel mortgage given by Cameron as receiver contained a purported acknowledgment, said to have been made by Cameron on September 1, 1948, before a notary public in Cook County, it is without dispute that in fact it was not so acknowledged.

The receiver continued in possession of the stockpiles and made sales therefrom. At various times the quarry was operated and the stockpiles were replenished. During the period of the State court receivership, payments were made to Walker from time to time and at the date of the proceedings for reorganization under Chapter X, Bankruptcy Act, 11 U.S.C.A. § 501 et seq., the sum of $13,050 was due to Walker. The district court thereafter authorized trustee Parkin to take over all of the property and assets of debtor from the receiver. The sum of $1,600 in two bank accounts was surrendered to the trustee.

On April 12, 1949, Walker filed a petition in the district court, praying for an order that the trustee pay petitioner all monies received by him since his appointment through the sale of any portion of the stockpiles described in the chattel mortgage and to surrender the stockpiles to the petitioner until such time as the receiver's note with accrued interest was satisfied in full, or, in the alternative, that petitioner be given permission to foreclose the chattel mortgage. The district court filed findings of fact and, in addition to statements hereinbefore set forth, found as to the cash then in the hands of the trustee, and as to petitioner's claim that said cash resulted from sales from the stockpiles described in the chattel mortgage, "It cannot be stated with any reasonable degree of certainty that some aliquot portion of said cash was thus derived." The court also recognized that the obligation...