Robertson v. Miller

• Decision Date: 28 December 1922
• Docket Number: 94.
• Citation: 286 F. 503
• Parties: ROBERTSON v. MILLER, Alien Property Custodian, et al.
• Court: U.S. Court of Appeals — Second Circuit

286 F. 503

ROBERTSON v. MILLER, Alien Property Custodian, et al.

No. 94.

United States Court of Appeals, Second Circuit.

December 28, 1922

Stockton & Stockton, of New York City (Chas. W. Stockton and K. E Stockton, both of New York City, and Alfred Sutro, of San Francisco, Cal., of counsel), for plaintiff-appellant-appellee.

William Hayward, U.S. Atty., of New York City, and Adna R. Johnson Jr., Dean Hill Stanley, and Lindley M. Garrison, Sp. Asst Atty. Gen., for defendants-appellants-appellees.

Before HOUGH, MANTON, and MAYER, Circuit Judges.

MANTON Circuit Judge.

We shall refer to the respective parties herein as plaintiff and defendants.

Plaintiff as assignee of the Mammoth Copper Mining Company of Maine, sued in equity to establish a debt claimed by him and to order the delivery by the defendant, Thomas W. Miller, as Alien Property Custodian, to the plaintiff, of so much of said money and property of the alien enemies herein mentioned as may be necessary to satisfy and discharge said debt with interest thereon and costs. The Alien Property Custodian and the Treasurer of the United States are made parties defendant, as are Nathan Sondheimer, Albert Sondheimer, Leo Werschner, Ludwig Beer, and Emil Beer, who are nonresident alien enemies. The suit is based on section 9 of the Trading with the Enemy Act (40 Stat. 419 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, Sec.

3115 1/2e)) and seeks to recover a debt for breach of a commercial contract. The defendants, Nathan Sondheimer, Albert Sondheimer, Leo Werschner, Ludwig Beer, and Emil Beer, all resided at Frankfort, Germany, and during the war, and before this suit was instituted, their property was seized as alien enemies. A trial was had of the issues raised by the pleadings, and thereafter a special master found the amount of the debt. His report has been approved by the court, and this appeal is taken from the final decree entered thereon. The decree below establishes that the German defendants did wrongfully breach their contract, and the indebtedness due to the plaintiff has been fixed at $257,597.21, with interest amounting to $31,800, and the costs of the action.

The indebtedness arose because of a breach of a contract dated August 26, 1914, but executed on September 29, 1914. By its terms, Beer, Sondheimer & Co. agreed to buy the total production of zinc, crude ore, shipped by the seller from its properties in Shasta county, Cal. The Mammoth Company was a going concern and owned a producing mine in Shasta county. The price fixed was governed by the St. Louis price of spelter, which was $5 per hundredweight, the buyer under the contract to pay $19 a ton for the zinc ore and for each rise of 1 cent in the price of spelter above $5 per hundredweight, a credit of 5 cents per ton was to be allowed, while for each drop, a debit of 5 cents per ton was to be made. Quotations were made in the Engineering & Mining Journal for the week of the date of the bill of lading. Provision was made for extra payment of ore containing more than 40 per cent. zinc and also payment for other valuable metals in the ore. Sampling and assaying the ore was fixed by the terms of the contract. It was to continue for one year from the date of the completion of the picking plant. The company contemplated building such a picking plant. In any event, the contract was not to continue for more than 18 months from the date of its execution. The picking plant was completed March 5, 1915, and the first shipment thereafter was made on March 6, 1915, and up to March 11, 1915, the Mammoth Company had produced and shipped 1,448.382 tons of ore for which payment was made at the contract price. The court below found that the Mammoth Company performed the conditions of the contract to be performed by it, and that Beer, Sondheimer & Co. repudiated the contract and breached the same. It was found that the required shipments were in as nearly equal weekly quantities as possible. The repudiation was on the sole ground of an alleged abnormal condition or a claim of a condition arising releasing it from performance on the vis major clause of the contract. It was found below that there was no vis major and that there were no objections to deliveries on the ground that they were not in as near as possible equal weekly quantities. It was found by the master that the assay of the ore was fair and accurate and was reasonably applied by the plaintiff in his calculation of the amount of his claim; also, that the price by the Mammoth Company on the resale of the ore was the best price obtainable in the market.

The first question presented is whether the plaintiff's claim for breach of this commercial contract is a 'debt' within the meaning of the Trading with the Enemy Act. Section 9 of the Act (Comp. St. 1918, Comp. St. Ann. Supp. 1919, Sec. 3115 1/2e) provides:

'That any person, not an enemy, or ally of enemy, claiming any interest, right, or title in any money or other property which may have been conveyed, transferred, assigned, delivered, or paid to the Alien Property Custodian hereunder, and held by him or by the Treasurer of the United States, or to whom any debt may be owing from an enemy, or ally of enemy, whose property or any part thereof shall have been conveyed, transferred, assigned, delivered, or paid to the Alien Property Custodian hereunder * * * may file with the said Custodian a notice of his claim under oath and in such form and containing such particulars as the said Custodian shall require: * * * If the President shall not so order (payment) * * * said claimant may, at any time before the expiration of six months after the end of the war, institute a suit in equity in the District Court of the United States for the district in which such claimant resides, or, if a corporation, where it has its principal place of business (to which suit the Alien Property Custodian or the Treasurer of the United States, as the case may be, shall be made a party defendant), to establish the interest, right, title, or debt so claimed, and if suit shall be so instituted then the money or other property of the enemy, or ally of enemy, against whom such interest, right, or title is asserted, or debt claimed, shall be retained in the custody of the Alien Property Custodian, or in the Treasury of the United States as provided in this act, and until any final judgment or decree which shall be entered in favor of the claimant shall be fully satisfied by payment * * * or until final judgment or decree shall be entered against the claimant, or suit otherwise terminated.'

The damage resulting from the breach of a commercial contract is a 'debt.' It has been so held under statutes for attachments against 'debtors' or suits founded on 'debts' or 'indebtedness.' Fisher v. Consequa, 9 Fed.Cas. 120, No. 4816; New Haven Co. v. Fowler, 28 Conn. 103; Showen v. J. L. Owens Co., 158 Mich. 321, 122 N.W. 640, 133 Am.St.Rep. 376. Where the term 'debt' is used under the National Bankruptcy Act (section 63 (Comp. St. Sec. 9647) providing debts founded upon an open account or upon a contract expressed or implied), it has been held that a claim for breach of a commercial contract is a debt as in Re Frederick L. Grant Shoe Co., 130 F. 881, 66 C.C.A. 78. This court held that a claim for damages against a bankrupt for breach of warranty accompanying a sale of shoes was a debt provable against his estate. Also, a breach of contract to supply ice gives rise to a debt provable in bankruptcy. In re Stern, 116 F. 604, 54 C.C.A. 60. See, also, Central Trust Co. v. Chicago Ass'n, 240 U.S. 581, 36 Sup.Ct. 412, 60 L.Ed. 811, L.R.A. 1917B, 580; Clarke v. Rogers, 228 U.S. 534, 33 Sup.Ct. 587, 57 L.Ed. 953; In re Mullings Clothing Co., 238 F. 58, 151 C.C.A. 134, L.R.A. 1918A, 539. Under the corporation laws of the states making individual members of a corporation liable for its debts, an unliquidated claim for damages against a manufacturing corporation has been held to be a debt.

'We do not think it admits of a reasonable doubt, that all such claims for damages were intended to be included in the term 'debts.' ' Mill Dam Foundery v. Hovey, 38 Mass. (21 Pick.) 417.

See, also, Proctor-Gamble Co. v. Warren Cotton Oil Co. (C.C.) 180 F. 543; Green v. Easton, 74 Hun, 329, 26 N.Y.Supp. 553.

In Fisher v. Consequa, supra, Justice Washington said: ''The uncertainty of the sum due, does not, in the common understanding of mankind, render it less a debt. A promise, whether express or implied, to pay as much as certain goods or labor are worth, or as much as the same kind of goods may sell for on a certain day, or at a certain market; or to pay the difference between the value of one kind of goods and another, creates, in common parlance, a debt.''

Also in the statutes regulating 'set-offs.' Jackson v. Bell, 31 N.J.Eq. 554; Baum v. Tonkin, 110 Pa. 569, 1 A. 535; Tompkins v. Augusta, etc., R. Co., 102 Ga. 436, 30 S.E. 992. Also probate statutes. Johnson v. Garner (D.C.) 233 F. 756. Also fraudulent conveyances. Woodbury et al. v. Sparrell Print et al., 187 Mass. 426, 73 N.E. 547.

When Beer, Sondheimer & Co., refused to accept and pay for the quantities of ore according to its metallic content, the ore was sold for less than the contract price. This was the best obtainable price as found below. The metallic content of the ore was known as soon as the assays were made. The price was determined by the quotations in the Engineering & Mining Journal and was fixed and definite. The law fixed the damages to plaintiff as the difference between the contract price and the resale price. Thus the calculation was made, and this was found by the master on no materially disputed fact. It was merely subtracting from the amount which Beer, Sondheimer &amp Co. should have paid...