In re Musgrave, 3468-C.

• Decision Date: 25 April 1939
• Docket Number: No. 3468-C.,3468-C.
• Parties: In re MUSGRAVE.
• Court: U.S. District Court — Northern District of West Virginia

27 F. Supp. 341

In re MUSGRAVE.

No. 3468-C.

District Court, N. D. West Virginia.

April 25, 1939.

Louis D. Meisel, of Fairmont, W. Va., for trustee.

Harry Shaw, of Fairmont, W. Va., for claimant and petitioner C. M. Williamson.

HARRY E. WATKINS, District Judge.

Claimant, C. M. Williamson, filed a preferred claim for wages in the amount of $3,285.09. The trustee objected to the claim, whereupon the objections were tried before the referee who denied the claim because of insufficient evidence. The claimant filed a petition to review the referee's order, alleging error in general terms.

Chapter 39(c) of the Bankruptcy Act of 1938, 11 U.S.C.A. § 67(c), and former General Order XXVII, 11 U.S. C.A. following section 53, require that the petition for review set out the error complained of. Here the petition for review alleges error in general terms only, viz: that the claim was disallowed. This is not sufficient to satisfy the requirements. The court should not be compelled to search the record for error. Where the assignment of error is that a particular finding is not supported by evidence without showing how it fails to support the finding, the assignment is insufficient. Virginia Ry. Co. v. Chambers, 4 Cir., 46 F.2d 20; in the Matter of Florsheim, bankrupt, D.C., 24 F.Supp. 991. While the court may decline to pass upon points not specifically designated, it is apparent from this record that this assignment of error is based upon the insufficiency of the evidence, and in the interest of expeditious justice the sufficiency of the evidence will now be considered.

In May, 1933, bankrupt purchased an undertaking business from Springer Brothers. Claimant, then employed as an undertaker by the latter, continued to work for the bankrupt after the purchase. Whether or not the claim should be allowed depends on the terms of employment as to compensation. Claimant takes the position that he was employed by the bankrupt at the rate of $150 per month, and in addition thereto was to have free rent, water, light and gas in an apartment occupied by him and his family at the place of business. The trustee and the bankrupt contend that he was employed upon a case basis of $5 to $20, depending upon the type of body handled, plus free rent and utilities. Upon the former basis the bankrupt is indebted to him for the amount claimed. Upon the latter basis he has been overpaid to the extent of $1,064.03. The referee held that the evidence was insufficient to sustain the claim upon either an express contract or a quantum meruit basis.

Claimant continued in the employment of the bankrupt until the date of bankruptcy, a period of more than five years. During all this time he made no complaint or demand for the large amount of accumulated salary, or any part thereof. Bankrupt says that he had no knowledge of any claim for back salary until about the time of bankruptcy. Claimant attempts to explain this by saying that he understood that he was to become a partner, and was letting the salary due him accumulate to pay for a half interest in the business. It is significant, however, that the claimant, himself, does not contend that any price had ever been agreed upon. Bankrupt denies any partnership or any such agreement. At the time bankrupt purchased the business, and for a year prior thereto, claimant admits that he was employed by Springer Brothers upon the exact case basis of compensation claimed by the bankrupt, but contends that a new verbal agreement for salary at the rate of $150 per month was made by the bankrupt at the time of his purchase. Claiman...