Samuels v. EF Drew & Co.
| Decision Date | 20 May 1924 |
| Citation | 7 F.2d 764 |
| Parties | SAMUELS v. E. F. DREW & CO., Inc. Ex parte CONWAY. |
| Court | U.S. District Court — Southern District of New York |
John G. Poore, of New York City, for claimant.
Maxwell Brandwene, of New York City, for receiver.
The master's report being exceptionally full, I need not repeat the facts. The questions substantially are these: (1) Did the receivers adopt the contract? (2) If not, did Conway prove a quantum meruit, and, if so, for how much?
The master has found that Farleigh, one of the two receivers, on Saturday, October 30th, or Sunday, October 31st, told Conway, in substance, that he should continue under the contract, and that this was fairly to be construed as an adoption of it by the receivers. I shall accept his finding because the testimony was directly in conflict. The question is then one of law. Several points arise. First, the order of October 30th provided that the receivers, "before entering upon the discharge of their duties, will file with the clerk of the court a proper bond." This they did not do till Monday, November 1st. Now, while it is true that the possession of the receivers, in the sense that the assets are in the custody of the court, dates from the granting of the order, still the receivers, as officers of the court, authorized to take any action as such, have no power to act till they fulfill the condition imposed on them by the order. In re Christian Jensen Co., 128 N. Y. 550, 553, 28 N. E. 665; Hegewisch v. Silver, 140 N. Y. 419, 35 N. E. 658. Perhaps the point is not vital, because such action no doubt might be ratified by subsequent acquiescence, and Farleigh did not repudiate his talk after he had qualified.
As the decree gives authority to the receivers "to demand, sue for, collect, receive, and take into their possession all * * * choses in action * * * and property of every description," I think that their powers were broad enough to authorize their acceptance of this chose in action cum onere, if they chose to do so. Thus the question is this: May a single receiver commit the estate by his several acceptance of such an asset? Curiously enough, the books seem to contain nothing upon it, because as respects Shirk v. Brookfield, 77 App. Div. 295, 79 N. Y. S. 225, I need only say that both receivers had appointed the manager who made the contract, if the case was one in special assumpsit, and both had signed the letter if it was on a quantum merit. For the rest, the case only decides that the admissions of either one is competent against the estate.
Being therefore called upon to consider the matter as res integra I have not the least hesitation in saying that both receivers must act. I do not mean that they may not by common consent distribute their affairs between them, delegating incidental decisions to either one severally. That question is not presented here, and I pass it till it arises. I do mean to say that when both are appointed all decisions which commit the estate to any obligation must have the concurrence of both to be valid, if not in each several case, at least by agreement covering matters of the general kind of which specific obligation is an instance.
It is indeed the purpose of having two receivers that decisions shall not be taken on the responsibility of only one, and indeed it is in practice an inconvenience so great as to make me generally loath to divide responsibility for the sake of greater security. Were it not so, instead of getting the security which joint action affords, the estate would be open to the hazard of double error and of discordant management. In the analogous situation of joint trustees, this is the rule (Insurance Co. v. Chase, 5 Wall. 509, 18 L. Ed. 524; Bagnell v. Ives C. C. 184 F. 466, 472), and the same is true of executors (Union Bank v. Sullivan, 214 N. Y. 332, 343, 108 N. E. 558). It is clear beyond question that Lowenthal never adopted the contract, and Conway's continuance in his position until Lowenthal's letter of December 16th was on the chance that he might or might not see fit to join in Farleigh's decision made at the very outset. Hence I overrule Conway's exceptions.
The master has found on the quantum meruit that the question always lay open between Lowenthal, who was sole receiver after December 12, 1920, and Conway, whether the monthly payments were to be full compensation for his services. He recognizes, and indeed it is unquestioned law, that,...
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Coal v. Old Ben Coal Corp.
... ... this case, based on Laroe v. Sugar Loaf Dairy Co., ... supra, are inconsistent with Samuels v. E ... F. Drew & Co. (D. C.), 7 F.2d 764, and ... apparently, with the charge to the jury in the unreported ... case of Gearheart v. Butz ... ...