In re Chesapeake Oyster & Fish Co.

• Decision Date: 02 January 1902
• Parties: In re CHESAPEAKE OYSTER & FISH CO.
• Court: U.S. District Court — District of Colorado

112 F. 960

In re CHESAPEAKE OYSTER & FISH CO.

United States District Court, D. Colorado.

January 2, 1902

Bicksler McLean & Bennett and S. S. Large, for petitioning creditors.

T. J 'Donnell, Milton Smith, and Smith & Robinson, for the Chesapeake Oyster & Fish Company.

HALLETT District Judge (orally).

The amended petition reads as follows in respect to the business of the corporation:

'The Chesapeake Oyster and Fish Company, a Colorado corporation is a mercantile and trading corporation engaged in the business of buying, selling, and trading in liquors, including wine, beer, whisky, and other beverages, both intoxicating and not intoxicating, and in the operation of a restaurant.'

In respect to the business of dealing in liquors, it is not stated that it is a wholesale dealer, and, from the language of counsel on both sides in the discussion of the questions arising upon the argument, I suppose, in the absence of an allegation that it is a wholesale dealer, we are at liberty to accept the statement of counsel that it keeps a saloon in connection with a restaurant; that is, a place where liquors are sold in small quantities and consumed upon the premises. If we may take the allegations together, that the business is that of a saloon and restaurant, it is most like the business of keeping a hotel. In a restaurant the business is the same as a hotel, except that lodgings are not furnished; guests are furnished with food in a saloon and restaurant, together with such beverages as they are inclined to take. So that there is a hotel business without the feature of lodgings, and the question under the act is whether that is a mercantile or trading pursuit. There are other terms in Bankr. Act, Sec. 4b, describing corporations which may be subject to the provisions of the act, but these terms are used in the petition. It is stated in the petition that it is a mercantile and trading corporation, and therefore we need consider only those terms. I think that it is impossible to say that it is of that character. Ordinarily we would not speak of a hotel business or a saloon business as a mercantile or trading business.

This question as to the meaning of the words 'mercantile' and 'trading' is much considered in the case of In re New York & W. Water Co., 3 Am.Bankr.R. 508, 98 F. 711. That was a petition filed against a company engaged in supplying water to a community, and the court, after reviewing the authorities and considering at some length the meaning of the words 'merchant' and 'trader,' used this language:

'In view of the above definitions and precedents, it seems to me a strange and unnatural use of terms to describe the ordinary business of a water supply company as a 'trading or mercantile pursuit' In common parlance, I think such

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