In re J. & M. Doyle Co.

• Decision Date: 03 August 1942
• Docket Number: No. 7994.,7994.
• Citation: 130 F.2d 340
• Court: U.S. Court of Appeals — Third Circuit
• Parties: In re J. & M. DOYLE CO.

130 F.2d 340 (1942)

In re J. & M. DOYLE CO.

No. 7994.

Circuit Court of Appeals, Third Circuit.

Argued July 8, 1942.

Decided August 3, 1942.

Thomas E. Doyle, of Erie, Pa. (Charles D. Cowley, of Erie, Pa., on the brief), for appellant.

John M. Reed, of Pittsburgh, Pa., for respondent.

Before BIGGS, MARIS, and GOODRICH, Circuit Judges.

BIGGS, Circuit Judge.

J. & M. Doyle Company entered into four highway paving contracts with the Department of Highways of the Commonwealth of Pennsylvania in the autumn of 1939. These contracts required the company to supply the Commonwealth with surety bonds guaranteeing the completion of the contracts and the payment of materialmen and laborers by the contractor. Aetna Casualty Insurance Company was the surety upon the bonds and the contractor gave the surety written contracts of indemnification in the usual form.

The indemnity agreements provided among other things that the contractor should indemnify the surety for any "* * * charges and expenses of whatsoever kind or nature, including counsel and attorney fees, whether incurred under retainer or salary or otherwise, which it shall or may at any time sustain or incur * * * by reason of its suretyship * * * or which it may sustain * * * in connection with any litigation, investigation * * *". One of the contracts was completed; two were incomplete, and work had not begun on the remaining contract, when in January, 1940, a bill in equity was filed in the Court of Common Pleas in Erie County by one of the officers and directors of the contractor praying the appointment of a receiver for the company for gross mismanagement. This caused the surety to investigate the financial status and condition of the contractor. It engaged counsel to aid it in the investigation. The surety paid its attorney the sum of $2,000 as compensation and $55 as reimbursement for his expenses. The surety's claim agent expended the sum of $285.87 in traveling expenses between Erie, Harrisburg and Pittsburgh and the surety also seeks reimbursement for this sum.

On March 25, 1940 a petition was filed by the contractor pursuant to the provisions of Chapter X of the Bankruptcy Act, 11 U.S.C.A. § 501 et seq. Subsequently an order was entered by the court adjudicating the company a bankrupt and referring the case to a referee. The surety filed its claim with the referee. The trustee filed objections to the claim. A hearing was had before the referee on March 20, 1941. The referee allowed the claim on March 24, 1941. A petition for review was prepared but the trustee was not available for its execution within ten days of the day of the entry of the order allowing the claim, and the trustee's attorney orally requested of the referee an extension of time beyond the ten-day period prescribed by Section 39, sub. c of the Bankruptcy Act, 11 U.S. C.A. § 67, sub. c, for filing a petition for review. It is not clear precisely what action the referee took but it is stated in a certificate filed by him entitled a "Certificate of Timely Filing of Petition for Review"¹ that he "* * * granted the request of attorneys for the Trustee and extended the time for filing the petition for review and allowed the filing thereof fourteen days after the order allowing the claim in question, although no written application for the extension of time was filed."

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