Lichtenstein v. Dial

• Decision Date: 27 October 1890
• Citation: 8 So. 272,68 Miss. 54
• Court: Mississippi Supreme Court
• Parties: W. LICHTENSTEIN v. E. H. DIAL

8 So. 272

68 Miss. 54

W. LICHTENSTEIN v. E. H. DIAL

Supreme Court of Mississippi

October 27, 1890

October 1890

FROM the chancery court of Lauderdale county, HON. SYLVANUS EVANS Chancellor.

The only question presented by this appeal is as to the proper compensation of receivers appointed by the chancery court.

One S I. Solomon had been appointed receiver of the property and assets of every description belonging to the mercantile firm of Charles Silverstein & Co., a receiver being necessary pending certain litigation in that court involving said property. At the ensuing term of the chancery court, after said appointment, Solomon was removed as receiver and the appellee, E. H. Dial, appointed in his stead. Pursuant to this appointment, the appellee gave bond as receiver in the sum of $ 10,000, and took possession of the assets of said Silverstein & Co. Sureties for the bond were provided by Lichtenstein. These assets consisted almost entirely of a stock of silverware and jewelry, valued according to the inventory at $ 9776. The value of the fixtures and other miscellaneous items made the aggregate assets $ 11,799. The appointment and qualification of the appellee was on the 16th of July, 1889, and on the 20th of July he received from Solomon the assets, and proceeded at once to make an inventory of the same, in which labor he found it necessary to employ a clerk to assist him. The stock of goods was not sold or otherwise disposed of by the appellee, and apart from the labor of making the inventory, which required three or four days, the duties of the receiver were confined to the preservation of the assets. On the 6th of August, following his appointment, the appellee procured from the chancellor in vacation, an order authorizing him to sell the stock of merchandise, and pursuant to the order offered the stock for sale to two or three persons, whom he supposed might purchase, but his efforts to sell were unsuccessful. It does not appear that the appellee performed any other service as receiver, except that he kept an oversight over the stock of goods and caused some of the most valuable articles to be removed to his home for safe keeping.

On the 17th day of August, 1889, Silverstein and Lichtenstein compromised and settled their litigation, and the former assigned to the latter all his interest in the assets of Silverstein & Co. Silverstein gave his consent in writing that Dial, the receiver, should turn over the same to Lichtenstein. Thereupon Dial presented his petition to the chancellor showing that the parties had compromised their litigation, and asked an order authorizing him to turn over the property to Lichtenstein. The order was granted, and on the following day Dial turned over to Lichtenstein all of said assets, taking his receipt therefor. At the ensuing term of the chancery court Dial made a final report as receiver and filed therewith an inventory of the assets received by him from his predecessor, and which he had delivered to Lichtenstein. He asked to be discharged and for an allowance of $ 42 expense incurred for clerks and labor, and also for proper compensation for his services as receiver. He claimed the sum of $ 500 for his services, which sum was objected to by the defendant, Lichtenstein, as being excessive. Whereupon the court stated that it would hear evidence as to what was a reasonable compensation. The testimony of Lichtenstein and Dial showed the facts as above stated. Three practising attorneys were then examined by the court on the question of compensation, and they concurred in the opinion that 3 1/2 or 4 per cent. on the value of the assets would be a reasonable allowance. The court allowed the appellee 4 per cent., which amounted to $ 471.98, and also $ 42, his actual expense incurred for clerk hire and labor.

From this decree Lichtenstein appealed.

Affirmed.

J. S. Hamm and R. F. Cochran, for appellant.

In this country, as in England, no established rule has been fixed for determining the amount of compensation to be allowed receivers. It may be said in general terms that the compensation should correspond with the degree of business capacity, integrity and responsibility required in the management of the affairs intrusted to the receiver, and that a reasonable compensation should be allowed according to the circumstances of each case. High on Receivers, § 783 and cases cited.

In fixing this the court is not governed by the special qualifications and standing of the person appointed, but should only allow what would be a reasonable amount for a person of ordinary ability performing the work. Ib. § 784; Beach on Receivers, §§...