Schram v. Perkins, No. 716.

CourtUnited States District Courts. 6th Circuit. United States District Court (Eastern District of Michigan)
Writing for the CourtLEDERLE
Citation38 F. Supp. 404
PartiesSCHRAM v. PERKINS et al.
Decision Date09 April 1941
Docket NumberNo. 716.

38 F. Supp. 404

SCHRAM
v.
PERKINS et al.

No. 716.

District Court, E. D. Michigan, Southern Division.

April 9, 1941.


38 F. Supp. 405

Robert S. Marx and Norman P. Burau, both of Detroit, Mich., for plaintiff.

Lewis Daniels, of Detroit, Mich., for defendants.

LEDERLE, District Judge.

1. Plaintiff, B. C. Schram, is the duly appointed, qualified and acting receiver of First National Bank-Detroit, an insolvent national banking association. This suit is in connection with winding up the affairs of said bank.

2. As such receiver, plaintiff is the holder of Exhibit 1, a negotiable promissory note dated January 26, 1933, payable 30 days after date to the order of First National Bank-Detroit, in the original amount of $4,207.41, with interest at 6% per annum. This note was made by "Perkins Bros. Per C. A. Perkins, Perkins Bros. Per J. R. Perkins". The total unpaid according to the terms thereof is $5,160.50, which includes interest to this date.

3. On February 27, 1939, plaintiff instituted this suit on said note, naming as defendants, "Clyde A. Perkins and Jesse R. Perkins, jointly and individually and as copartners doing business as Perkins Brothers." Defendants answered, pleading that the liability of themselves, individually and as partners, and the liability of the partnership entity, on said note, had been discharged in 1935 by the consummation of a composition with creditors in voluntary bankruptcy proceeding number 18011, in this court, in which proceeding plaintiff was a party-claimant and recipient of a pro rata share of composition payments.

4. At the trial plaintiff limited his request for relief to a joint judgment against the partners.

5. Defendants attempted to prove as a fact that the composition had been of the debts and liabilities of the partners as well as of the partnership entity.

6. The bankruptcy files and records were introduced into evidence, and the court has carefully examined the same, which examination discloses the following: On September 28, 1934, voluntary petition and schedules in bankruptcy were filed in the matter of "Perkins Bros., a co-partnership, Bankrupt", for which a fee of $30 was paid to the Clerk. There was one set of schedules filed, which schedules were uniformly signed "Perkins Bros., by Clyde A. Perkins, Jesse R. Perkins". The petition lists the two business places of the partnership, and the space provided for residence of a petitioning bankrupt is left blank. No separate schedules were filed by either partner. The affidavits attached to Schedule A, as to debts, and to Schedule B, as to assets, designated "Clyde A. Perkins and Jesse Raymond Perkins, copartners doing business as Perkins Bros.," as affiants. Throughout the proceedings, pleadings were captioned "In the Matter of Perkins Bros., a copartnership", and referred to the bankrupt in the singular, in many instances designating the bankrupt as "it". Of six wage claims listed in Schedule A-1, two were as follows: "C. A. Perkins, $44.94", and "J. D. Perkins, $30.00". Opposite each of these amounts in the referees' file appears the penciled word "waived". Among waivers of composition dividends was one signed by Clyde A. Perkins and another signed by Jesse D. Perkins. Nowhere were these wage claims listed as assets of the individual partners. Adjudication having been stayed pending a composition, an order was entered on October 8, 1934, reading as follows:

"Upon reading and filing the petition of Perkins Bros., a copartnership, setting up the fact that it filed voluntary petition in bankruptcy and that the said copartnership is desirous of offering a composition to its creditors, as stated in the petition filed herein, it is hereby ordered that Perkins Bros., a copartnership, be and is hereby authorized to file an offer of composition."

38 F. Supp. 406

On the same day, the offer of composition was filed. It was captioned "In the Matter of Perkins Bros., a copartnership, Bankrupt", and was directed to "Creditors of Perkins Bros., a copartnership". The terms of the offer referred to the offerees as "creditors of the undersigned", and it was signed at the bottom as follows: "Perkins Bros., a copartnership, By: Clyde A. Perkins; By: Jesse R. Perkins".

Upon petition signed in the same manner, an order was entered by the court on October 8, 1934, setting forth that upon reading and filing the petition of Perkins Bros., a copartnership, relative to composition, the matter was referred to referees to call a meeting of creditors to consider the offer "made by the bankrupt herein". The very detailed inventory and appraisal were composed solely of merchandise, furniture and fixtures and equipment at the two business places of the partnership. The appraised replacement value was $17,668.65, and appraised present market value was $5,368. The composition offer was 5% cash and 5% in notes. The cash deposited for the composition was $5,960.48,...

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12 practice notes
  • First Interstate Bank of Fargo, N.A. v. Larson, No. 900386
    • United States
    • United States State Supreme Court of North Dakota
    • September 17, 1991
    ...that they be joined as co-defendants and sued together. Williams v. Reed, 113 Cal.App.2d 195, 248 P.2d 147 (1952); Schram v. Perkins, 38 F.Supp. 404 (E.D.Mich.1941); Black's Law Dictionary, p. 838 (6th ed. 1991). In a "joint and several liability," each co-obligor, individually, has the dut......
  • Blank v. Bitker, No. 8215.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • June 10, 1943
    ...subject matter of actions in connection with winding up the affairs of insolvent national banking associations. Schram v. Perkins, D.C., 38 F. Supp. 404; cf. Armstrong v. Trautman, C.C., 36 F. 275; Dinan v. First National Bank of Detroit, 6 Cir., 117 F.2d 459; Pufahl, Receiver, v. Estate of......
  • Calvey v. United States, No. 20989.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • September 15, 1971
    ...torts for which the partner individually had no responsibility. Soberg v. Sanders, 243 Mich. 429, 220 N.W. 781 (1928); Schram v. Perkins, 38 F.Supp. 404 While we find no Michigan "penalty" cases, we note that Mich.Stats.Ann. § 20.13 specifically provides that the partnership is liable for "......
  • Johnson v. Jones-Journet, JONES-JOURNET
    • United States
    • Supreme Court of Louisiana
    • September 5, 1975
    ...see United States v. Wainer, 108 F.Supp. 386 (N.D.Ill.1952), Rev'd on other grounds, 211 F.2d 669 (7th Cir. 1954); Schram v. Perkins, 38 F.Supp. 404 (E.D.Mich.1941). For example, article 2088 of the Civil Code provides: The obligation is In solido, or joint and several between several credi......
  • Request a trial to view additional results
12 cases
  • First Interstate Bank of Fargo, N.A. v. Larson, No. 900386
    • United States
    • United States State Supreme Court of North Dakota
    • September 17, 1991
    ...that they be joined as co-defendants and sued together. Williams v. Reed, 113 Cal.App.2d 195, 248 P.2d 147 (1952); Schram v. Perkins, 38 F.Supp. 404 (E.D.Mich.1941); Black's Law Dictionary, p. 838 (6th ed. 1991). In a "joint and several liability," each co-obligor, individually, has the dut......
  • Blank v. Bitker, No. 8215.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • June 10, 1943
    ...subject matter of actions in connection with winding up the affairs of insolvent national banking associations. Schram v. Perkins, D.C., 38 F. Supp. 404; cf. Armstrong v. Trautman, C.C., 36 F. 275; Dinan v. First National Bank of Detroit, 6 Cir., 117 F.2d 459; Pufahl, Receiver, v. Estate of......
  • Calvey v. United States, No. 20989.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • September 15, 1971
    ...torts for which the partner individually had no responsibility. Soberg v. Sanders, 243 Mich. 429, 220 N.W. 781 (1928); Schram v. Perkins, 38 F.Supp. 404 While we find no Michigan "penalty" cases, we note that Mich.Stats.Ann. § 20.13 specifically provides that the partnership is liable for "......
  • Johnson v. Jones-Journet, JONES-JOURNET
    • United States
    • Supreme Court of Louisiana
    • September 5, 1975
    ...see United States v. Wainer, 108 F.Supp. 386 (N.D.Ill.1952), Rev'd on other grounds, 211 F.2d 669 (7th Cir. 1954); Schram v. Perkins, 38 F.Supp. 404 (E.D.Mich.1941). For example, article 2088 of the Civil Code provides: The obligation is In solido, or joint and several between several credi......
  • Request a trial to view additional results

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