Grainger & Co. v. Riley

• Decision Date: 07 January 1913
• Docket Number: 2,271.
• Citation: 201 F. 901
• Parties: GRAINGER & CO. v. RILEY. In re GLOBE PRINTING CO.
• Court: U.S. Court of Appeals — Sixth Circuit

201 F. 901

GRAINGER & CO. v. RILEY.

In re GLOBE PRINTING CO.

No. 2,271.

United States Court of Appeals, Sixth Circuit.

January 7, 1913

Gifford & Steinfeld, Fred Forcht, Jr., and Benjamin F. Washer, all of Louisville, Ky., for appellant.

Graddy Cary, Henry Burnett, and H. W. Batson, all of Louisville Ky., for appellee.

Before WARRINGTON and DENISON, Circuit Judges, and McCALL, District judge.

McCALL District Judge.

On the 23d day of May, 1910, the Globe Printing Company entered into a written contract with one George Looms, by the terms of which certain premises in Louisville, Ky., were leased by Looms to the Globe Printing Company for a period of 20 years from September 1, 1910. The lessee took possession of the premises, and afterwards employed the appellant, Grainger &amp Co., to rearrange and repair an elevator thereon. This work was completed prior to December 21, 1910. The contract price was $1,046. The Printing Company paid $100 on account. No further sums having been paid, a balance of $946 remained.

On March 20, 1911, the Globe Printing Company was adjudged a bankrupt, and shortly thereafter the appellee, William E Riley, was elected trustee of the bankrupt's estate. On the 19th of May, 1911, Grainger & Co., with the view of perfecting a lien upon the leased premises, and also upon the bankrupt's leasehold interest therein, filed in the office of the clerk of the county court of Jefferson county Ky., a statement that a lien was claimed by it to secure the payment of said account. Subsequently, appellant filed its claim with the referee against the bankrupt's estate, and asserted its said lien.

The referee, without notice to the trustee, allowed the claim as a secured one, on the day it was filed. Thereafter exceptions were filed by the trustee of the bankrupt, and, upon hearing, the order allowing the claim as a secured one, was set aside, and it was allowed as a general claim. Upon review by the District Court, the findings of the referee were affirmed. In due season, Grainger & Co. perfected an appeal to this court, and also filed its petition for review.

Under the ruling of the Supreme Court of the United States in the Matter of the Petition of Loving, trustee, the petition for review must be dismissed. 224 U.S. 183, 32 Sup.Ct. 446, 56 L.Ed. 725.

The sole question involved is whether the appellant held a secured claim against the bankrupt's estate. The answer of the question depends upon section 2463 of the Kentucky Statutes, as amended in 1910 (Laws 1910, c. 64), and which is as follows:

'A person who performs labor or furnishes material in the erection, altering or repairing a house, building or other structure, or for any fixtures or machinery therein, or for the excavation of cellars, cisterns, vaults, wells, or for the improvement, in any manner, of said real estate by contract with, or by the written consent of the owner, contractor, subcontractor, architect, or authorized agent, shall have a lien thereon, and upon the land upon which the said improvements shall have been made or any interest such owner has in the same, to secure the amount thereof, with cost; and said lien on the land or improvements shall be superior to any mortgage or encumbrance created subsequent to the beginning of the labor, or the furnishing of the material; and said lien, if asserted, as herein provide, shall relate back and take effect from the time of the commencement of the labor or the furnishing of the materials; provided, that no person shall acquire a lien under this section unless he shall notify, in writing, the owner of the property to be held liable or his authorized agent, immediately after the last item of said material or labor is furnished, of his intention to hold the said property liable, and the amount for which he will claim a lien.'

The last clause of the section, beginning with the words, 'that no person,' etc., is an amendment added to the original section in 1910 (Session Acts Ky. 1910, p. 201), and it has not been considered by the Court of Appeals of Kentucky, and we therefore must determine the question before us unaided by the opinion of that court.

It is agreed that no notice was given immediately after the completion of the work as provided in the...