Weisstein Bros. & Survol v. Laugharn

• Decision Date: 08 June 1936
• Docket Number: No. 8120.,8120.
• Citation: 84 F.2d 419
• Parties: WEISSTEIN BROS. & SURVOL v. LAUGHARN.
• Court: U.S. Court of Appeals — Ninth Circuit

84 F.2d 419 (1936)

WEISSTEIN BROS. & SURVOL v. LAUGHARN.

No. 8120.

Circuit Court of Appeals, Ninth Circuit.

June 8, 1936.

Jules C. Goldstone and David A. Sondel, both of Los Angeles, Cal., for appellant.

Robert B. Powell, of Los Angeles, Cal., for appellee.

Before WILBUR, DENMAN, and HANEY, Circuit Judges.

WILBUR, Circuit Judge.

This is an appeal from an order of the District Court reversing an order of the referee in the nature of a turnover order and in lieu thereof approving a general claim of the appellant for the sum of $902.04.

The Ontario Canning Company, Inc., debtor, filed a petition under section 77B of the Bankruptcy Act (11 U.S.C.A. § 207). Thereafter a stipulation was entered into between the appellant, as claimant, and the trustee in bankruptcy, referring a controversy between them as to certain canned food to the referee in bankruptcy for decision subject to review and appeal. The claimant had purchased from the debtor 353 cases of four dozen cans each of Youngberries. Eleven thousand nine hundred twenty cases of such fruit, including 253 cases that had been purchased by appellant, were at the time of the purchase in the possession of the Lawrence Warehouse Company as pledge holder, to secure an indebtedness amounting to $21,495.40 due to the Security First National Trust & Savings Bank, pledgee.

The stipulation for submission of the issues between the trustee and appellant show that 100 cases of the fruit had been delivered to the claimant, but that 253 cases of the value of $1366.20 had not been delivered. The stipulation recited the contention of the claimant that it was the owner of the remaining 253 cases and that the trustee had effected a sale of all the assets of the debtor, including its equity in the pledged fruit; that the claimant waived all objections to the confirmation of the sale. It was stipulated that the trustee should retain the sum of $1,366.20 to await the termination of issues between the parties. The stipulation provided that "in the event claimant shall establish that, as of the date of the filing of the petition herein, it was the owner of and entitled to the possession of 253 cases IT Dell Valle Youngberries Fancy and that said merchandise came into the possession of the trustee or that said merchandise had been theretofore or thereafter placed in the field warehouse of the debtor, operated by the Lawrence Warehouse Company, and that the trustee or Claimant was entitled to recover possession thereof from or out of said field warehouse, then, and in either of such events, the trustee shall pay and deliver said sum to claimant and such payment shall be and constitute full payment of any and all claims of said claimant against said trustee, or said debtor.

"In the event claimant shall fail to establish such title or right to possession, said sum shall be thereafter used as a part of the general assets of the estate and claimant may thereupon file its claim herein in the usual course."

The pledgee, the Security First National Bank of Los Angeles, was not a party to the stipulation, but it appeared before the referee and objected to the jurisdiction of the referee to hear the matter. The referee sustained the objection, stating, "That said objection as to the jurisdiction of the referee is a good...