In re L.P. Hollander Co.

• Decision Date: 26 October 1938
• Citation: 301 Mass. 278,16 N.E.2d 35
• Parties: In re L. P. HOLLANDER CO., Inc.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

301 Mass. 278

16 N.E.2d 35

In re L. P. HOLLANDER CO., Inc.

Supreme Judicial Court of Massachusetts, Suffolk.

Oct. 26, 1938.

Proceedings by the L. P. Hollander Company, Inc., for dissolution of such corporation, wherein a receiver was appointed. A decree was entered allowing the claims of Rosetta Kaskel and William H. Browning in reduced amounts, and Rosetta Kaskel and William H. Browning bring exceptions and take an appeal.

Exceptions partly overruled and partly sustained, and decree affirmed as modified.Exceptions and Appeal from Superior Court, Suffolk County; Williams, judge.

A. E. Whittemore, of Boston, for Rosetta Kaskel and others.

F. G. Goodale, of Boston, and W. A. Neal, for receiver.

LUMMUS, Justice.

This is a petition for dissolution of a corporation, under G.L. (Ter.Ed.) c. 155, §§ 50-53. The corporation has been in bankruptcy, where all proved claims were paid in full, leaving a balance of assets in the hands of the corporation at the filing of the present petition. A receiver was appointed on March 8, 1933, and June 1, 1933, was fixed as the time before which claims must be filed with the receiver, in order that they might share in the distribution of the essets. Two claims are before us, those of Kaskel and of Browning. By decree of July 2, 1937, the claim of Kaskel was allowed in the sum of $66,494.08 instead of $74,391.58 as claimed. The claim of Browning was allowed in the sum of $62,657.85 instead of $70,555.35 as claimed. These and other claims as allowed in the aggregate substantially exceed the assets. But the claimants, seeking allowance of the larger sums claimed, bring the case here upon exceptions as well as appeal. This may be done in equity, useless as such a duplication of remedies may be. Shea v. Lexington, 290 Mass. 361, 373, 195 N.E. 494;Todd v. Pearce, 291 Mass. 455, 460, 197 N.E. 156;Pemberton Square Operating Co. v. Lydon, 292 Mass. 63, 64, 197 N.E. 514;Hopkinson v. First National Bank of Provincetown, Mass., 200 N.E. 381. The disallowed part of each claim amounted to $7,897.50.

The disallowed part of each claim consisted of the taxes which became due and payable to the city of New York on May 1, 1933, upon real estate in New York leased by the respective claimants to the corporation, which taxes the corporation by the respective leases had agreed to pay. In the lease given by Kaskel, the corporation agreed that it would ‘punctually pay and discharge all taxes' and ‘such taxes * * * shall be paid within sixty days after the same shall become due and payable. And it is further agreed that if any such amounts shall not be paid at the time or in the manner aforesaid the same shall be added to and become part of the month's rent next thereafter to become due and be collectible therewith, and that the landlord may pay the said amounts or any of them, in which event the amount so paid shall be repaid to the landlord by the tenant with interest within ten days of such payment, provided the same shall not theretofore have been paid with and as part of the rent; but the right of the landlord to recover said sum with and as part of said rent shall not be dependent upon his payment of the same.’ Rent under this lease was payable on the first day of each month in advance.

In receivership, claims, to be provable, need not be due or payable at the beginning of the suit. It is sufficient if the claim has ‘matured’ at the date fixed as the last day for filing claims. International Paper Co. v. Priscilla Co., 281 Mass. 22, 36, 183 N.E. 58. By ‘matured,’ is meant become absolutely due, without contingency, although not necessarily liquidated nor presently payable. Ellis v. Burnham, 263 Mass. 57, 59, 60, 160 N.E. 437;Standard Oil Co. of New York v. Back Bay Hotels Garage, Inc., 285 Mass. 129, 134, 135, 188 N.E. 619;Deane v. Caldwell, 127 Mass. 242, 245;Samuels v. E. F. Drew & Co., Inc., 2 Cir., 292 F. 734.

The receiver contends that, under the terms of the Kaskel lease, the failure to pay the taxes on May 1, 1933, did not give the landlord at once a matured claim, which became payable and upon which he could sue in sixty days. The receiver contends that the exclusive remedies of the landlord were to wait sixty days, and then either (a) treat the unpaid taxes as ‘added to and become part of the months's rent next thereafter to become due’, or (b) pay the taxes and sue for them with interest at the end of ten days more. In the former alternative, no claim could be said to be matured on the crucial date, June 1, 1933, for the rent to which the unpaid taxes were to be added could not be any rent due before July 1, 1933. Whether any rent would become due July 1, 1933, could not be determined until that day. ‘Before the day at which rent is covenanted to be paid, it is in no sense a debt; it is neither debitum nor solvendum; for if the lessee is evicted before that day, it never becomes payable.’ Deane v. Caldwell, 127 Mass. 242, 244;Bowditch v....