Fidelity Safe-Deposit & Trust Co. v. Armstrong

• Decision Date: 11 May 1888
• Citation: 35 F. 567
• Parties: FIDELITY SAFE DEPOSIT & TRUST CO. v. ARMSTRONG.
• Court: U.S. District Court — Southern District of Ohio

35 F. 567

FIDELITY SAFE DEPOSIT & TRUST CO. v. ARMSTRONG.

United States Circuit Court, S.D. Ohio.

May 11, 1888

Drausin Wulsin, for complainant.

C. W Kittredge and W. B. Burnett, for respondent.

SAGE J., (orally.)

The bill sets forth, in substance, that on the 1st of March 1886, the complainant made a contract which, although not stated in the bill to be, in terms, was, in effect, a lease of the premises occupied by the Fidelity National Bank, in the St. Paul building, Fourth street, Cincinnati, for 20 years, at an annual rental of $5,600, payable in monthly installments, at the end of each month. That the Fidelity National Bank entered into possession under this contract, and so continued until the 20th of June, 1887, when the comptroller of the currency took possession of the property and assets of the bank, and the bank suspended operations. That on the 27th of June, 1887, the defendant was appointed receiver, and entered into possession of the property of the bank, and has ever since continued as receiver. That on the 30th of June, 1887, the comptroller of the currency instituted proceedings which resulted in the forfeiture of the charter of the Fidelity National Bank, by an order made by this court on the 12th of July, 1887. That the assets which passed into the hands of the receiver are insufficient to pay the debts of the bank. That there are due for rent upon this lease various amounts, set forth in the bill of the complainant, being $155.55 for the month of June 1887, and $291.66 for each of the months September, October November, and December, 1887. There is no explanation in the bill of this diminished amount, but the statement was made by counsel upon the argument that the receiver occupied the premises during those months upon an agreement at that sum, which, being paid, reduced the rent to the sum of $291.66, instead of $455.55; and this arrangement reserved all rights of both parties, without prejudice to the rights of either. The bill proceeds to state that the premises are vacant; that the recover refused to enter into possession; that the value of the premises is decreased to $3,000 per annum; and that the complainant has been damaged in the sum of $50,000-- First, by reason of the insolvency of the Fidelity National Bank; second, by reason of the dissolution of the corporation; third, by reason of the forfeiture of its charter; and, fourth, by the refusal of the receiver to take under the contract, and pay the rent. The claim was presented to the receiver, and rejected. One dividend has been declared, and others are to follow. And the bill proceeds to aver that the complainant will be entirely without remedy unless allowed to prove for a gross sum, which shall be a commutation of the entire rent,-- or rather, the present value of the rent for the entire term, and receive dividends thereon. The prayer is that the receiver be required to withhold from the assets in his hands the sum of $50,000, to meet the damages from month to month, or that the cash value may be ascertained, and the complainant be allowed to prove claim for...