Green v. Finnigan Realty Co.

• Decision Date: 26 April 1934
• Docket Number: No. 6997.,6997.
• Citation: 70 F.2d 465
• Parties: GREEN v. FINNIGAN REALTY CO.
• Court: U.S. Court of Appeals — Fifth Circuit

70 F.2d 465 (1934)

GREEN v. FINNIGAN REALTY CO.^*

No. 6997.

Circuit Court of Appeals, Fifth Circuit.

April 26, 1934.

Everett L. Looney, of Austin, Tex., for appellant.

E. H. Suhr and Chas. W. Bell, both of Houston, Tex., for appellee.

Before BRYAN, SIBLEY, and HUTCHESON, Circuit Judges.

SIBLEY, Circuit Judge.

Green, as trustee in bankruptcy, appeals from a judgment holding him to pay to Finnigan Realty Company as owner of premises in Houston, Tex., rent for May and June, 1932, during which he occupied them, at the rate fixed by the bankrupt's lease instead of at a reasonable rate found and applied by the referee. The essential facts are that the bankrupt corporation held the premises under a sublease assented to by the original lessor, Finnigan Realty Company, for a term of nine years to end December 31, 1938, at a monthly rental of $1,750 payable in advance to Finnigan Realty Company. Adjudication on a voluntary petition was made April 20, 1932, and Green as receiver took charge, with authority to continue bankrupt's mercantile business. On May 6, 1932, he was made trustee with like orders. A composition was confirmed July 1, 1932. The rent for April was paid, presumably in advance by the bankrupt. So soon as Green was appointed receiver, he, under authority of the court, notified Finnigan Realty Company by telegram that he disaffirmed any lease to the bankrupt, but would consider continuing to occupy at a reduced rental to be submitted to the court. No reply coming, he wrote on April 28th that he disaffirmed the lease and would only occupy at the court's will after April 30th, and at such rental as the court should find to be reasonable, and asked for a proposition. On May 6th, as trustee, he repeated the letter. On May 4th Finnigan Realty Company had written from New York that it had no offer to make, that the receiver had no power to affirm or disaffirm the lease, but if the trustee should validly disaffirm it he would have to surrender the property and meanwhile would be liable for the rent fixed by the lease. On May 10th it wrote in reply to the trustee's letter of May 6th that it would consent to his occupying the premises only on the basis of $1,750 per month. No agreement was reached. Neither in that letter nor thereafter was any demand for possession made on the trustee, and no petition for possession was made to the court. Instead, a claim was filed for $3,500 for the two months' rent as expenses of administration. Rents had greatly fallen in Houston since the lease was made, and the reasonable rental value in 1932 of the premises was $1,000 per month, at which figure the lessor made a new lease of them beginning July 1, 1932, when the trustee yielded possession. The referee reduced the claim to $2,000 and allowed it.

A leasehold may be a valuable asset of an estate, or because of its rent rate or other conditions it may be burdensome and undesirable. "It has long been a recognized principle of the bankrupt laws that the assignees were not bound to accept property of an onerous or unprofitable character." American File Co. v. Garrett, 110 U. S. at page 295, 4 S. Ct. 90, 94, 28 L. Ed. 149. Of a seat on a stock exchange which involved burdens on its owner it was said in Sparhawk v. Yerkes, 142 U. S. at page 13, 12 S. Ct. 104, 106, 35 L. Ed. 915: "They (the assignees) were not bound, however, to accept property of an onerous and unprofitable nature, which would burden instead of benefiting the estate, and they could elect whether they would accept or not, after due consideration and within a reasonable time; while, if their judgment was unwisely exercised, the bankruptcy court was open to the creditors to compel a different conclusion." Under the present Bankruptcy Act, the trustee ought to get the authority or ratification of his court. Lincoln National Life Ins. Co. v. Scales (C. C. A.) 62 F.(2d) 582. A receiver also, whether in bankruptcy or in equity, although he takes no title has a similar liberty of electing under authority of his court within a reasonable time whether to adopt or reject burdened property or any executory contract of the insolvent. "Upon taking possession of the property, he was entitled to a reasonable time to elect whether he would adopt this contract and make it his own, or whether he would insist upon the inability of the company to pay, and return the property in good order and condition; paying, of course, the stipulated rental for it so long as he used it." Sunflower Oil Co. v. Wilson, 142 U. S. at page 322, 12 S. Ct. 235, 237, 35 L. Ed. 1025. Numerous cases since have applied these principles. See 3 Remington, Bankruptcy, §§ 1215 and 1216, and cases cited. Green, whether as receiver or as trustee, the court consenting, could within a reasonable time decline to accept the leasehold estate and to become bound by the covenants of the lease, though liable for the rental named in the lease for his occupancy under it pending his decision. He decided at once, and all rent for the period of indecision has been paid. On April 30th, having rejected the lease and the time for which rent had been paid having elapsed, he should have surrendered possession. The leasehold remained the bankrupt's, if...