Fleming v. Noble
| Decision Date | 02 April 1918 |
| Docket Number | 1318. |
| Citation | 250 F. 733 |
| Parties | FLEMING v. NOBLE et al. |
| Court | U.S. Court of Appeals — First Circuit |
James H. Duffy, of Boston, Mass., for appellant.
John Noble, of Boston, Mass., for appellees.
Before BINGHAM and JOHNSON, Circuit Judges, and ALDRICH, District judge.
This is an appeal from a decree of the District Court confirming the report of a special master appointed by it to find the facts and make report thereon to the court in respect to the claim of the appellant against the Associated Trust, of which the appellee was appointed receiver August 27, 1914.
The claim was one for $150 for use and occupation of her premises by the receiver during the month of September, 1914.
The master found and reported the following facts:
The Associated Trust, at the time of the appointment of a receiver, was occupying the premises under lease for the term of five years, beginning September 12, 1912, at a monthly rental of $150, and kept there, more or less, building material used in their repair work, some tools, a motor truck, considerable piping, some radiators and many used doors and window sashes, and also on the third floor a printing plant, which was then in operation, and which was continued in operation by the receiver during the month of September, in order to finish work on hand. The other property of the Trust was kept on the premises during that month by him.
There was no agreement or understanding between the receiver and the lessor for compensation for the use and occupation of the premises by the receiver, and there was no adoption of the lease by him.
The receiver, on September 4, 1914, telephoned the attorney for the appellant that he had a prospective tenant for the premises, and referred the tenant to John F. Fleming, her husband, who was acting for and in her behalf.
The receiver told the prospective tenant that, if a lease were negotiated for the premises, he would want a day or two to remove the property of the Trust; but there is no finding in regard to the date when this prospective tenant wished to enter into occupation of the premises, or when he desired his term to commence. He reported to the receiver in about a week that Mr. Fleming was ill, and the receiver called the attorney for the appellant, and informed him that Stoner & Zeimetz were impatient to know if they could get a lease of the premises, and was informed that Mr. Fleming was still ill.
September 26 Mr. Fleming was able to go to the receiver's office and on that day an agreement to lease the premises, except one room on the first floor, which the receiver had sublet to the town of Brookline for $15 per month, beginning September 1, was prepared by the receiver and executed by Stoner & Zeimetz and Fleming for the remainder of the term of the lease to the Trust, viz., October 1, 1914, to September 1, 1917, at the rental of $135 per month, which the master has found was a fair rental value of that part of the premises covered by this lease, and which, with the rental to be paid by the town of Brookline, would make the fair rental value of the whole premises $150 per month.
The master reported the following conclusions from these facts:
That the lessor suffered no loss of income, and was not prevented from leasing the premises, by reason of the use and occupation of the receiver; that there was no cause for the delay in executing the new lease, except the illness of Mr. Fleming; that it was of benefit to the estate and a convenience to the receiver to use and occupy part of the lessor's premises in winding up the affairs of the Associated Trust; and that 'the sum of $30 is a reasonable sum for the receiver to pay for such use as he made of the premises.'
The District Court added to the amount reported by the master the sum of $15 collected by the receiver from the town of Brookline and confirmed the report so modified.
No exception was taken to the findings of fact by the master, and they must be accepted as true. We are concerned only with the conclusions which he has drawn from these facts, and which should be considered with every reasonable presumption in their favor, and not set aside unless clearly erroneous. Trust Company v. Cooper, 162 U.S. 529, 16 Sup.Ct. 879, 40 L.Ed. 1062; Camden v. Stuart, 144 U.S. 104, 118, 12 Sup.Ct. 585, 36 L.Ed. 363.
The law is well settled that a receiver may take and retain possession of leasehold property for such reasonable time as will enable him to elect intelligently whether the interest of his trust will be best served by adopting the lease or by returning the property to the lessor. Sunflower Oil Company v. Wilson, 142 U.S. 313, ...
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