In re United Cigar Stores Co.

• Decision Date: 09 April 1934
• Docket Number: No. 331.,331.
• Citation: 70 F.2d 313
• Parties: In re UNITED CIGAR STORES CO. OF AMERICA. SALISBURY INV. CO. v. IRVING TRUST CO. et al. HALLORAN v. IRVING TRUST CO.
• Court: U.S. Court of Appeals — Second Circuit

70 F.2d 313 (1934)

In re UNITED CIGAR STORES CO. OF AMERICA.

SALISBURY INV. CO. v. IRVING TRUST CO. et al.

HALLORAN v. IRVING TRUST CO.

No. 331.

Circuit Court of Appeals, Second Circuit.

April 9, 1934.

Kellogg, Emery & Inness-Brown, of New York City (Dean Emery, Douglas M. Black and George Koegler, all of New York City, of counsel), for Salisbury Investment Co.

Paul Williams, of New York City, for William J. Halloran.

Cravath, de Gersdorff, Swaine & Wood, of New York City (William D. Whitney, of New York City, of counsel), for Irving Trust Co. as Trustee in Bankruptcy.

Before MANTON, L. HAND, and AUGUSTUS N. HAND, Circuit Judges.

MANTON, Circuit Judge.

The United Cigar Stores Company of America, a New Jersey corporation, was adjudged a bankrupt on August 29, 1932. It leased a hotel in Salt Lake City, Utah, on November 12, 1919, from the appellant Salisbury Investment Company, for a term of years expiring December 31, 1940, with renewal privilege for 60 years more. The bankrupt agreed to demolish the existing buildings before January 1, 1936, and to build, within 20 months thereafter, new buildings to cost not less than $250,000.

The bankrupt, after entering into possession under this lease, on August 9, 1922, entered into a contract with William J. Halloran, appellant, with reference to the operation and management of the property. By that agreement, the parties were to share equally all the net profits derived from and sustain all losses incurred through the management of the premises under the lease. The net profits were to be determined after deducting all expenses of management and operation, a fixed compensation to Halloran, and a sum for auditing duties assumed by the bankrupt. The bankrupt paid rent for a cigar store occupied by it in the demised premises. The agreement provided that it was not to constitute an assignment of any interest of the bankrupt in and to the premises under the lease nor was it to establish a partnership relation. Moreover, the agreement provided that the construction of the new building under the terms of the lease should be provided for by saving all the net profits, if any, arising out of the premises after the payment of the service item to appellant Halloran and the auditing duties assumed by the bankrupt. There was to be no division or distribution of net profits, if any, until after the new building had been erected and all charges in connection therewith had been fully paid. And "in the meantime United shall be charged with interest upon any such net profits accumulated and remaining in its possession, at the rate of five per centum per annum * * * which interest shall likewise be credited to and become a part of the fund so to be provided for such new building."

It further provided that: "VII. After the completion of such new building so to be erected, United, at its option, shall have the right to withhold from the net profits, if any, of the premises such reasonable amount as it shall deem necessary for the purpose of providing a fund against future losses, upon which fund as long as the proceeds thereof shall remain in the possession of United, United shall be chargeable with interest at the rate aforesaid. United shall have the right, at its option, at any time, to pay over any funds accumulated hereunder to any bank or trust company to be held by such bank or trust company to the credit of United, and having done so, shall not be responsible for the solvency of any such institution, any such deposit relieving it from responsibility in regard thereto, subject, however, to the application of such fund as and when withdrawn by United under and in accordance with the terms of this agreement."

And further: "VIII. In the event of any expenditure whatsoever in connection with the said lease, whether by reason of the terms of the lease or because United in its discretion shall decide so to do, and if the fund then accumulated shall be insufficient at that time for the purpose, both parties hereto shall contribute equally upon demand of United, such amount as shall be deemed by United necessary to provide for any expenditure, but which fund shall be retained by United or by the institution chosen as custodian or depository until the expenditure is made."

After this agreement, the appellants carried out the terms of the agreement between them. The gross receipts from the operation of the hotel were deposited in several bank accounts of the bankrupt, which paid the expenses involved in the operation of the premises, drawing upon various of its bank accounts. At all times the aggregate amount of the bank accounts exceeded the amount of the net profits. The net profits were never segregated in a separate bank account, nor were the expenses in connection with the lease paid out of the same bank accounts in which the gross receipts were deposited. Entries were made on the bankrupt's books in two accounts, one crediting the net profit monthly as they accrued under the title of "William J. Halloran, Equity Fund 766," and the other "United Cigar Stores Co. of America, Equity Fund 766." At the time of adjudication in bankruptcy, it is stipulated the amounts were $77,563.77 and $79,119.04, respectively. Appellant Halloran claimed his sum as a trust fund and filed a reclamation claim. The Salisbury Company was granted permission to intervene. The referee disallowed the Halloran claim as a reclamation claim, but allowed it as a general claim, but the claim of the Salisbury Company was disallowed both as a reclamation claim and as a general claim.

The appellants' agreement provided that the bankrupt retain the net profits for the purpose of providing funds for the building operation and also for any expenditures in connection with the lease. Thus the fund was not to be gathered for building only but for purposes of the lease. The bankrupt promised to pay interest, indicating a debtor and creditor relationship rather than that of trustee and beneficiary. A trust involves a specific subject-matter or res, while a debt does not. The obligation of a trustee is equitable rather than legal. A fiduciary relation exists in the office of a trustee. The appellants' agreement does not specifically provide for a trust; it does provide for net profits and the uses to be made of such profits. There was no segregation of the net profits or putting aside of such funds. Article VII provides for the disposition of the net profits after the performance of the building covenant. After completion of the building, the net profits were to be used as a fund against future losses. This negatives the claim of a trust...