In re Howard

• Decision Date: 20 February 1905
• Docket Number: 1,095.
• Parties: In re HOWARD.
• Court: U.S. Court of Appeals — Ninth Circuit

135 F. 721

In re HOWARD.

No. 1,095.

United States Court of Appeals, Ninth Circuit.

February 20, 1905

Joseph R. Patton and William A. Coulton, for petitioner.

Tirey L. Ford, for respondent.

Before GILBERT, ROSS, and MORROW, Circuit Judges.

MORROW Circuit Judge.

Charles B. Bills, as trustee in bankruptcy of the estate of Edward B Howard, trading as Howard & Co., bankrupt, commenced an action in the Circuit Court of the United States for the Eastern District of New York on the 16th day of January 1900, against Sylvester G. Whiton, as executor of the estate of Charles H. Skidmore, deceased. The action was commenced by the trustee by the sanction and authority of the referee in bankruptcy of the District Court for the Northern District of California in and for the county of Santa Clara, in this state, for the purpose of recovering from Whiton, as such executor, certain moneys which were the proceeds of sales of six car loads of dried fruit theretofore consigned to the firm of Turle & Skidmore by Edward B. Howard, prior to being adjudicated a bankrupt, as a factor of the original shippers. The proceeds of these shipments were then in the hands of Whiton as executor of the estate of Skidmore; the said Skidmore being the general, and the said Turle being the limited, partner of said firm of Turle &amp Skidmore. In this action Louis C. Schliep, as assignee of the original shippers, was on the 6th day of December, 1901 substituted as a defendant in place of Whiton, executor. Thereafter, and on August 28, 1902, a decree was entered in said action in which it was adjudged that the sum of $6,502.22 on deposit in the Washington Trust Company, with interest thereon at the rate of 3 per cent. per annum from December 7, 1901, belonged to the plaintiff Charles B. Bills, as trustee in bankruptcy of the estate of Edward B. Howard, bankrupt, with the exception of $150.63, with interest thereon at the rate of 3 per cent. per annum from the date of the original deposit with the trust company, which last sum, it was adjudged, belonged to the defendant Schliep. In pursuance of this decree it was ordered that the Washington Trust Company, upon presentation of a certified copy of the decree and order, should pay to the plaintiff Bills, or to his attorney, Philo B. Safford, the said sum of $6,502.22, with interest as specified in the decree, and to Louis C. Schliep, or his attorney, the sum of $150.63, with interest as specified in the decree. On August 29, 1902, the day after the entry of this decree, the trust company paid over to Safford, as attorney for the trustee, the sum of $6,492.37, and thereupon Safford transmitted to said trustee the sum of $5,274.26, retaining the sum of $1,218.11; claiming $1,075 thereof as a payment on account of legal services rendered by him in said action, and $143.11 for disbursements made by him therein. Upon the receipt of said sum of $5,274.26 by the trustee, he caused it to be deposited in the Bank of San Jose, the depositary designated by the District Court of the United States for the Northern District of California as the bank in which all moneys received by the said trustee in the matter of said bankruptcy should be deposited. After the entry of the decree in favor of the trustee in the Circuit Court, the defendant Schliep appealed the case to the Circuit Court of Appeals for the Second Circuit, and on December 6, 1903, that court reversed the decree of the Circuit Court; holding, upon the evidence in the case, that the San Jose shippers, in the sale of their fruit, had dealt with Howard as the mere agent of Turle & Skidmore. 127 F. 103, 62 C.C.A. 103. The Court of Appeals accordingly directed the Circuit Court to order the funds to be paid over to the defendant Schliep, as the assignee of the shippers, and a mandate was issued to the Circuit Court accordingly. On February 11, 1904, a final decree was entered in the Circuit Court in favor of the defendant Louis C. Schliep, pursuant to the mandate of the Circuit Court of Appeals. In this decree it was further ordered that Schliep should recover his costs in the Circuit Court of Appeals and in the Circuit Court, taxed at $681.30. Thereafter, and on April 1, 1904, the Circuit Court, upon motion for restitution, was advised by the affidavit of Louis C. Schliep of the payment by the Washington Trust Company of the sum of $6,492.37 on August 29, 1902, to Philo B. Safford, as attorney for the trustee; that the attorney had transmitted $5,274.26 to the trustee, and had applied $1,218.11, the remainder thereof, in payment of professional services rendered and expenses incurred by him as attorney for the trustee in the action; that demand had been made upon the...