Fidelity and Deposit Co. of Maryland v. Fitzgerald

• Citation: 272 F.2d 121
• Decision Date: 03 November 1959
• Docket Number: No. 6167.,6167.
• Parties: FIDELITY AND DEPOSIT COMPANY OF MARYLAND, Appellant, v. Thomas J. FITZGERALD, Trustee in Bankruptcy, Appellee. Matter of MIDYETT AND MAY CONSTRUCTION COMPANY, a partnership, consisting of Horace Leon Midyett and Ruel Farries May, Bankrupt.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

272 F.2d 121 (1959)

FIDELITY AND DEPOSIT COMPANY OF MARYLAND, Appellant, v. Thomas J. FITZGERALD, Trustee in Bankruptcy, Appellee.

Matter of MIDYETT AND MAY CONSTRUCTION COMPANY, a partnership, consisting of Horace Leon Midyett and Ruel Farries May, Bankrupt.

No. 6167.

United States Court of Appeals Tenth Circuit.

November 3, 1959.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

H. Gayle Weller, Denver, Colo. (John R. Hickisch, Denver, Colo., on the brief), for appellant.

John W. Low, Denver, Colo., for appellee.

Before MURRAH, Chief Judge, and PHILLIPS and LEWIS, Circuit Judges.

PHILLIPS, Circuit Judge.

This is an appeal from an order of the United States District Court for the District of Colorado, affirming on a petition for review, an order of the referee denying in part the amended claim of Fidelity and Deposit Company of Maryland, hereinafter called Fidelity Company, filed against the estate of Midyett and May Construction Company, a partnership, Bankrupt, hereinafter referred to either as the Construction Company or the Bankrupt.

The Construction Company was adjudged a bankrupt on March 13, 1957. Prior to bankruptcy, the Construction Company had engaged in the construction business and had entered into a number of construction contracts. In connection with each of such contracts, the Construction Company, as principal, and Fidelity Company, as surety, executed and delivered to the owner, the other party to the construction contract, a performance bond.

On September 13, 1956, the Construction Company executed and delivered to Fidelity Company a contract collateral to such performance bond contracts, in which the Construction Company agreed to indemnify and save Fidelity Company harmless from and against any loss, cost, liability or expense which Fidelity Company should at any time sustain or incur in consequence of such performance bonds.

Within the six-month period "after the first date set for the first meeting of creditors" (11 U.S.C.A. § 93, sub. n), Fidelity Company filed its original unsecured claim, in part a contingent liability claim and in part a liquidated surety claim.¹

After the expiration of the six-month period and on May 21, 1958, Fidelity Company filed its amended claim in which it alleged:

"2. That * * * the above-named bankrupt was at and before the filing by it of its petition for adjudication of bankruptcy justly and truly liable to * * * Fidelity * * * Company * * * in the sum of $390,409.19 as a contingent liability, that * * * bankrupt is now indebted to * * * Fidelity * * * Company * * * in the sum of $74,713.07 as a liquidated claim.

* * * * * *

"B. That on or about May 14, 1956, * * * Fidelity * * * Company * * * as surety executed a bond in the amount of $85,089.00 to the School District No. 50 Adams County, Westminster, Colorado, wherein the bankrupt was principal, that under the said bond * * * Fidelity * * * Company as surety became obligated to pay and did pay $5,083.07, that in addition the said surety incurred and paid expenses in the amount of $487.74.

"C. That on or about May 15, 1956 * * * Fidelity * * * Company * * * as surety executed a bond in the amount of $19,956.00 to the Continental Oil Company wherein the bankrupt was principal. That under the said bond * * * Fidelity * * * Company as surety became obligated to pay and did pay $1,276.00, that in addition the said surety incurred and paid expenses in the amount of $75.00, that there was attached to the original claim an executed copy of affidavit of assignment with regard to the payment as made under the bond to the Denver Glass Company.

"D. That on or about May 24, 1956 * * * Fidelity * * * Company * * * as surety executed a bond in the amount of $90,824.00 to the Board of Education, School District No. 6, Arapahoe County, Colorado, wherein the bankrupt was principal. That under the said bond * * * Fidelity * * * Company as surety became obligated to pay and did pay $14,854.74, that in addition the said surety incurred and paid expenses in the amount of $602.51. That one of the claims * * * paid was $94.61 to the Union Supply Company who has filed a claim being claim #24 in the amount of $94.61. That one of the claims * * * paid was $1550.27 to Stephan Dach who has filed claim #19 in the amount of $2388.77.

"E. That on or about July 30, 1956 * * * Fidelity * * * Company * * * as surety executed a bond in the amount of $34,143.26 to the Denver Methodist Church Extension Society and the Thornton Methodist Church, wherein the bankrupt was principal. That under the said bond * * * Fidelity * * * Company as surety became obligated to pay and did pay $11,626.50, that in addition the said surety incurred and paid expenses in the amount of $951.60, that one of the claims * * * paid was the Arvada Lumber Company in the amount of $7.89, that the said Arvada Lumber Company has filed a claim, being Claim Number 8, in the amount of $111.03. That one of the claims * * * paid was Stephan Dach in the amount of $600.00, that Stephan Dach has filed a claim in this bankruptcy estate, being Claim Number 19, in the amount of $2,388.77. That one of the claims * * * paid was the Barnett Company in the amount of $52.50, that the Barnett Company has filed a claim in this bankruptcy estate, being Claim Number 28, for the amount of $52.50. That one of the claims * * * paid was Kitchen Distributors, Inc. in the amount of $28.15, that Kitchen Distributors, Inc. has filed a claim in said bankruptcy estate, being Claim Number 41 in the amount of $272.97.

"F. That on or about October 24, 1956 * * * Fidelity * * * Company * * * as surety executed a bond in the amount of $25,000.00 to the Harvey Park Baptist Church wherein the bankrupt was principal. That under the said bond * * * Fidelity * * * Company * * * as surety became obligated to pay and did pay $5,887.95, that in addition the said surety incurred and paid expenses in the amount of $436.00. That one of the claims * * * paid was Stephan Dach in the amount of $400.00, that Stephan Dach has filed a claim in this bankruptcy estate, being Claim Number 19, in the amount of $2,388.77. That one of the claims * * * paid was Gump Glass Company in the amount of $217.00, that the Gump Glass Company has filed a claim in this bankruptcy estate, being Claim Number 29, in the amount of $1561.32. That one of the claims * * * paid was the Denver Hardware Co. in the amount of $592.65, that Denver Hardware Co. has filed a claim in this bankruptcy estate, being Claim Number 39 in the amount of $1261.52. That one of the claims * * * paid was Kitchen Distributors, Inc. in the amount of $244.82, that Kitchen Distributors, Inc. has filed a claim in this bankruptcy estate, being Claim Number 41, in the amount of $272.97.

"G. That on or about December 20, 1956, * * * Fidelity * * * Company * * * as surety executed a bond in the amount of $135,396.93 to Hod Carriers and Laborers Union No. 720 wherein the bankrupt was principal. That under the said bond * * * Fidelity * * * Company as surety became obligated to pay and did pay $30,440.40, that in addition the said surety incurred and paid expenses in the amount of $2991.56. That one of the claims * * * paid was $391.50 to Caissons, Inc. who have filed Claim Number 15 in the amount of $445.50. That one of the claims * * * paid was $635.00 to Nyco who has filed Claim Number 32 in the amount of $1385.00."

In the original claim it was alleged that no part of the liability had been paid; that there were no setoffs or counterclaims to the liability; that Fidelity Company does not have any security or securities for the liability; that the liability is founded upon the indemnity agreement, a copy of which was attached to the original claim, and that such claim is unsecured. The amended claim contained substantially the same allegations.

The trustee filed objections to the allowance of the claim, as amended, on two grounds: One, that the claim was not filed in the names of the creditors to whom Fidelity Company had made payments, as required by § 57, sub. i of the Bankruptcy Act; and Two, that the claim did not set forth with sufficient definiteness a proof of loss sufficient to constitute Fidelity Company a creditor under § 57, sub. a of the Bankruptcy Act. Fidelity Company moved the court for leave to amend, so as to substitute as claimants, for the benefit of Fidelity Company, the creditors to whom Fidelity Company had made payments as surety under its bond, as set forth in the claims. The referee denied the motion to amend on the ground that it would set up a new claim, filed after the six-month period had elapsed.

Section 63, sub. a and (8) of the Bankruptcy Act, 11 U.S.C.A. § 103, sub. a and (8) reads:

"(a) Debts of the bankrupt may be proved and allowed against his estate which are founded upon * * * (8) contingent debts and contingent contractual liabilities; * * *."

Section 57, sub. d of the Bankruptcy Act, 11 U.S.C.A. § 93, sub. d, provides:

"(d) Claims which have been duly proved shall be allowed upon receipt by or upon presentation to the court, unless objection to their allowance shall be made by parties in interest or unless their consideration be continued for cause by the court upon its own motion: Provided, however, That an unliquidated or contingent claim shall not be allowed unless liquidated or the amount thereof estimated in the manner and within the time directed by the court; and such claim shall not be allowed if the court shall determine that it is not capable of liquidation or of reasonable estimation or that such liquidation or estimation would unduly delay the administration of the estate or any proceeding under this title."

Section 57, sub. i of the Bankruptcy Act, 11 U.S.C.A. § 93, sub. i reads as follows:

"(i) Whenever a creditor whose claim against a bankrupt estate is secured by the individual undertaking of any person fails to prove and file such claim, such person may do so in the creditor\'s name and, if he

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