Clarke v. Chase Nat. Bank of City of New York, 282.

• Citation: 137 F.2d 797
• Decision Date: 29 July 1943
• Docket Number: No. 282.,282.
• Parties: CLARKE v. CHASE NAT. BANK OF CITY OF NEW YORK.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

137 F.2d 797 (1943)

CLARKE v. CHASE NAT. BANK OF CITY OF NEW YORK.

No. 282.

Circuit Court of Appeals, Second Circuit.

July 29, 1943.

Lewis M. Dabney, Jr., of New York City (William T. Holmes, of New York City, of counsel), for Stanley Clarke, Trustee of Associated Gas & Electric Co., plaintiff-appellant.

Milbank, Tweed & Hope, of New York City (Lawrence Bennett, A. Donald MacKinnon, Einar B. Paust, and Eugene H. Gordon, all of New York City, of counsel), for Chase Nat. Bank of City of New York, defendant-appellee.

Before L. HAND, AUGUSTUS N. HAND and CHASE, Circuit Judges.

AUGUSTUS N. HAND, Circuit Judge.

Associated Gas and Electric Company (herein called Ageco) filed its petiton for reorganization under Chapter X of the Bankruptcy Act, 11 U.S.C.A. § 501 et seq., on January 10, 1940, and the plaintiff, Stanley Clarke, was appointed trustee by an order of the District Court dated October 16, 1940, which vested him with title to the property of the debtor, Ageco, and authorized him to collect all choses in action due the debtor. A later order under date of November 15, 1940, provided that he should have such additional rights as a receiver in equity would have if appointed by a court of the United States for the property of the debtor. Thereafter the trustee brought this suit against the defendant Chase Bank and filed its second amended complaint alleging five causes of action (stated as five counts) which the defendant moved to dismiss on the ground that they did not state claims upon which any relief could be granted, and as to the first and third counts, that the trustee lacked title and was without capacity to sue and that the court lacked jurisdiction. The motions were granted as to all five counts, but the defendant was given leave to amend the fifth count. An order dismissing the first, third and fifth counts was made by Judge Conger and a second order dismissing the second and fourth counts was made by Judge Caffey. From each order the plaintiff has appealed.

The first count alleged that in February, 1929, Ageco and the defendant's predecessor executed an indenture covering an issue of Ageco debentures due January 15, 1949, (herein called 1949 debentures); that Ageco covenanted therein not to mortgage or pledge any of its property, with certain exceptions, without ratably securing the 1949 debentures and also not to consolidate, merge or convey a substantial portion of its property without causing its successor to execute a supplemental indenture securing the observance of all the covenants and conditions of the original indenture. It further alleged that on June 12, 1928, Ageco and the defendant executed another indenture covering an issue of its debentures due 1958 (called herein 1958 debentures) and containing negative covenants similar to those made by Ageco in the indenture covering the 1949 debentures. The first count further alleged that at the beginning of 1932 one Hopson, the dominant figure in the Associated Systems, devised a scheme, which was the basis of the claims set forth in the first and second counts, to defraud the Ageco debenture-holders; that in December, 1931, Ageco's assets consisted substantially of the stock and of over $670,000,000 of indebtedness of its subsidiaries, Associated Utilities Investing Corporation and Associated Properties, Inc.; pursuant to Hopson's scheme to defraud, Associated Utilities Investing Corporation amended its charter, changing its name to Associated Gas and Electric Corporation (herein called Agecorp), and in March, 1932, Associated Properties Inc. was merged into Agecorp and the latter acquired the assets and assumed the liabilities of the former; about the same time a portion of Agecorp's indebtedness to Ageco was converted into stock of Agecorp which was issued to Ageco, and the balance of such indebtedness was subordinated to other obligations of Agecorp; that in July, 1932, the indebtedness of Agecorp to Ageco was extinguished by Agecorp's issuance of further Agecorp stock to Ageco; in April, 1932, Agecorp issued debentures known as the 8s of '40 which purported to be superior to the other obligations of Agecorp; the subordination of Agecorp's debt to Ageco and its conversion into Agecorp stock and the subsequent issuance of Agecorp's 8s of '40 constituted violations of the covenants of the indentures securing the 1949 and 1958 debentures of Ageco; the defendant, indenture trustee, failed to prevent Ageco from carrying out the above transactions and such failure constituted a breach of defendant's duties as such trustee. It was further alleged that in January, 1932, Ageco owed the defendant $4,000,000; about March 16, 1932, at a conference between Hopson, attorneys for Ageco, defendant's president, and attorneys for the defendant, it was agreed that the defendant would make no objection to the issue of Agecorp's 8% debentures of 1940; in March and May, 1932, the defendant received payment of the above indebtedness by Ageco of $4,000,000, nearly all of it from the proceeds of sale of the 8s of '40; defendant received payment when Ageco was insolvent, or insolvency was imminent, and such condition was known to the defendant. A decree is asked that the defendant restore to the plaintiff for distribution among the debenture-holders of Ageco, the amount of their losses resulting from the breaches of trust.

The second count incorporated the allegations of the first and asked for a decree that the defendant restore the payments it received in March and May, 1932, upon the condition that it should be reinstated as a general creditor.

The third count incorporated the allegations of the first and second counts and claimed recovery for breaches of trust due to the so-called plan announced by Ageco on May 15, 1933, for its recapitalization, known as the "Recap Plan" under which holders of Ageco debentures might exchange their debentures (1) for one-half the principal amount of Agecorp debentures due in 1973, or (2) for an equal principal amount of income debentures of Ageco due in 1978, or (3) for an equal principal amount of sinking fund debentures of Ageco due in 1983. This count alleged that the issuance of the Agecorp option debentures was in violation of the negative covenants which the defendant as indenture trustee should have enforced. As in the first count a decree is asked that the defendant restore to the plaintiff for distribution among the debenture holders of Ageco the amount of their losses resulting from the foregoing breaches of trust.

The fourth count incorporated the allegations of the three former counts and alleged that on May 15, 1933, the defendant owned $4,249,000 of Ageco's debentures which it refused to exchange under the Recap Plan we have referred to but, along with other securities, transferred on August 28, 1934, to four of Ageco's wholly owned subsidiaries, receiving from Ageco's subsidiaries securities of greater value, at the time knowing that Ageco was insolvent. A decree is asked that the defendant restore the preference realized from the dealings set forth in the fourth count.

The fifth count alleged that the defendant had been paid $40,000 as trustee's fees (which included counsel fees) and sought to recover these sums with interest because of the various derelictions of the indenture trustee.

To summarize: It is charged in the second amended complaint that the defendant, though knowing the insolvency of Ageco and the risks that its debenture-holders were incurring, failed to prevent Ageco from violating the negative pledge covenants of the indenture, to the damage of the debenture-holders (first and third counts); that the defendant received payment of its own claims from Ageco, though knowing the latter was insolvent or in imminent danger of insolvency (second count); that the defendant made an unfair exchange of securities with Ageco's subsidiaries at a time when Ageco was insolvent (fourth count), and that by reason of its derelictions above set forth the defendant should not be permitted to retain the fees it has received for its services (fifth count).

An objection to the first and third counts which was argued in the court below and is reiterated here is that the plaintiff is not the real party in interest and cannot assert rights arising from the failure of the indenture trustee to prevent breaches of the negative covenants of the trust indentures. The argument is that these rights belong only to the debenture-holders, as the court below found to be the case, and are not vested in the plaintiff. There can be no doubt that if the debentures had been secured by property of the debtor and the pledgees had improperly diverted the security, the plaintiff would have been able to enforce the right of the debenture-holders to have it or its value restored even if the security was worth less than the face of the debentures and the debtor had no other assets. In Central Hanover B. & T. Co. v. President, etc., of M. Co., 105 F.2d 130, 132; In re Central Funding Corporation, 75 F.2d 256, and In re Mortgage Securities Corporation, 75 F. 2d 261, 262, we held that a debtor can be reorganized though its equity has lost all value. As we said in In re Mortgage Securities Corporation, 75 F.2d at page 262, where the debtor had parted with its interest in mortgaged property: "* * * the shareholders, the unsecured creditors, and the secured, are each a separate order in one hierarchy; each has its proper unity; the section is intended as a remedy to allow all or some of these classes to establish a concourse which will avoid that dismemberment of their interests which other remedies occasion. Thus it can make no difference that the group of shareholders has been definitely eliminated, either by a legal transaction as here, or by such a collapse in value that there is no reasonable expectation of revival." See, to the same effect, our recent decision in Manufacturers Trust Co. v. Kelby,...