Seaboard Surety Company v. United States

• Decision Date: 24 July 1962
• Docket Number: No. 17618.,17618.
• Citation: 306 F.2d 855
• Parties: SEABOARD SURETY COMPANY, a New York Corp., and Hansen & Rowland, Inc., a Washington Corp., Appellants, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

306 F.2d 855 (1962)

SEABOARD SURETY COMPANY, a New York Corp., and Hansen & Rowland, Inc., a Washington Corp., Appellants, v. UNITED STATES of America, Appellee.

No. 17618.

United States Court of Appeals Ninth Circuit.

July 24, 1962.

Skeel, McKelvy, Henke, Evenson & Uhlmann, William E. Evenson, Jr., and William F. Baldwin, Seattle, Wash., for appellant.

Louis F. Oberdorfer, Asst. Atty. Gen., Washington, D. C., Brockman Adams, U. S. Atty., and Thomas H. S. Brucker, Asst. U. S. Atty., Seattle, Wash., for appellee.

Before POPE, BARNES and BROWNING, Circuit Judges.

BARNES, Circuit Judge.

This is an appeal from a judgment entered by the United States District Court directing the clerk of the court to pay appellee $28,673.16 from the funds in the registry of the court, and giving judgment against appellants in the amount of $1,903.02. Jurisdiction was conferred upon the district court by §§ 1335 and 2463, Title 28 United States Code, and § 7403, Title 26 United States Code.

Judgment for appellee was entered on September 5, 1961. A timely notice of appeal was filed. This court has jurisdiction to review the judgment entered below under the provisions of §§ 1291 and 1294(1), Title 28 United States Code.

We note that Seaboard and Hansen & Rowland appeal from the judgment, but that defendant creditors have not appealed from the judgment granting appellee priority over their claims.

This was an action in interpleader brought by appellants, interpleading plaintiffs below, to determine the relative rights of various creditors, including appellee, in and to certain funds representing the profit from a completed construction job of Poland & Pfaff, Inc. (hereinafter referred to as "taxpayer").

On or about December 31, 1956, taxpayer was awarded a government construction contract. Taxpayer and C & R Builders, Inc. (hereinafter referred to as "C & R"), a joint venturer, on December 31, 1956 made application to appellant Seaboard Surety Company (hereinafter referred to as "Seaboard") for the issuance of a performance bond, and a payment of labor and material bond. As a condition to issuance of the bonds, Seaboard required "standby" agreements to be obtained from taxpayer's existing creditors.¹ Appellee, although a creditor,² was not requested to nor did it participate in any such agreement. None of the aforementioned creditors had any claim or debt due from taxpayer arising out of the government contract.

On March 2, 1957, a trust agreement (Ex. 1) was executed by taxpayer, C & R, Seaboard, the University Branch of the Pacific National Bank of Seattle (hereinafter referred to as "Pacific National"), and appellant Hansen & Rowland, Inc. (hereinafter referred to as "Hansen & Rowland"). The trust instrument's preamble states that the proceeds of taxpayer's government contract were assigned³ to Pacific National.⁴

The contract was performed and all claims arising therefrom were satisfied as of May 27, 1959. The balance in the trust account was $31,171.16 which sum is the "remaining funds" referred to in paragraph (i) of the trust agreement (set forth in footnote 4, supra).

On or about July 31, 1958, appellee through its District Director of Internal Revenue for the Seattle District, caused a Notice of Levy (Form 668-A) to be served upon Hansen & Rowland showing a total amount (including interest) of $28,006.08 then due on appellee's liens. On or about August 15, 1958, appellee, through its same agent, caused a Final Demand (Form 668-C) to be served on Hansen & Rowland and on Seaboard.

Faced with competing claims of creditors and appellee to the profits of taxpayer from its government contract, appellants brought the interpleader action on May 29, 1959, against the creditors and appellee as defendants, asking the court to determine their respective rights to the aforementioned fund.⁵

Appellants expressly disclaimed any interest in or right to the deposited fund of $28,673.16 for their own interest, except that they alleged that the trust account was "primarily" subject to the costs and expenses of these proceedings, the reimbursement to them for all their costs and expenses to be incurred therein, and to the payment of all beneficiaries of the trust account and defendants which otherwise on any account would have any claim against appellants or either of them.

The defendant creditors, represented by their own attorneys, fully participated in the proceedings below. Appellee moved to dismiss the action against it and intervened to enforce its tax liens. The essential facts were admitted on pretrial order, and based upon the facts above stated, the district court entered the following Conclusions of Law:

(1) That a lien for taxes under Section 6321 of the Internal Revenue Code of 1954, 26 U.S.C.A. § 6321 attaches to all "property and rights to property belonging to a taxpayer." However, rights under an executory bilateral contract are not property or rights to property within the scope of Section 6321 unless and until the agreed exchange under the bilateral contract has been performed and a right to payment has been earned.

(2) That under Washington law there was no valid legal or equitable assignment to defendant creditors or an interest in the fund to be created from performance of the government contract.

(3) That when the fund referred to in paragraph (i) of the trust agreement came into existence after prior claims to the proceeds of the government contract were paid, the tax lien of appellee attached to and had priority over the claims of defendant creditors.

(4) That under the rule announced in United States v. Liverpool & London & Globe Insurance Co., 1954, 348 U.S. 215, 75 S.Ct. 247, 99 L.Ed. 268, appellants were not entitled to priority over the claim of appellee for the expense incurred in bringing this action.

(5) That appellee (the intervenor) is entitled to a judgment and decree declaring that the priorities and the rights to payments from the trust account (which fund totaled $31,173.16 as of May 27, 1959) are as follows:

First Priority: The tax liens of appellee in the sum of $23,780.31 plus interest at the rate of six per cent on $21,440.31 from November 15, 1956 to date in the amount of $6,164.07 plus interest at said rate on $2,340.00 from February 28, 1957 to date in the amount of $631.80 (totaling $30,576.18).

Second Priority: The costs and attorneys' fees of appellants.

Third Priority: The priority and amounts of each of the several defendant creditors were not established, as the funds which are the subject of this interpleader action will be insufficient to satisfy the second priority.

(6) That appellee is entitled to an order directing the clerk of the district court to pay it $28,673.16 from the funds in the registry of the court.

(7) That appellee is entitled to judgment against Seaboard and Hansen & Rowland in the amount of $1,903.02. (This represents the difference between the total amount due the government and the amount deposited by the Trustee.)

(8) That appellants are entitled to judgment for costs and attorneys' fees in the amount of any balance remaining in their possession originating from the trust account after payment of the judgment in favor of appellee ($2,500 less $1,903.02, or $596.98).

An agreed computation of the interest due on the tax liens was made. On September 5, 1961, the district court entered judgment which followed in its terms the above Conclusions, i. e., the clerk was directed to pay appellee $28,673.16 from the funds in the registry of the court, and appellee was given judgment against appellants in the amount of $1,903.02. Appellants were awarded the balance of $596.98.

Appellants set forth seventeen specified errors upon which they rely in this court. For reasons set forth below, however, we believe only those errors which touch upon that part of the judgment granting appellee judgment against Seaboard and Hansen & Rowland in the amount of $1,903.02 are properly to be considered by this court.

In their complaint appellants stated:

"* * * Plaintiff trustee is ready, willing and able to pay the balance of said fund over to the clerk of this court or as this court by its judgment may otherwise direct. Plaintiffs disclaim any interest in or right to said balance of said account for their own interests, except that plaintiffs allege said account is primarily subject to the costs and expenses of these proceedings, the reimbursement of plaintiffs for all their costs and expenses to be incurred herein, and to the payment of all beneficiaries of said trust account and defendants which otherwise on any account would have any claim against the plaintiff or either of them." (Emphasis added.)

This partial disclaimer was repeated in the Partial Pretrial Order and the Findings of Fact. Thus, appellants disclaimed any interest in the deposited fund. The district court found they had no interest in the fund. Under these circumstances, we rely on the rule that a party who has no interest in a fund cannot appeal from an order disbursing that fund.⁶ Defendant creditors below, who are the only parties affected by that portion of the judgment, had the right to appeal to protect their interests. They did not do so. Appellants have no right or power to represent the interests of others on appeal. Therefore, appellants' appeal must be dismissed insofar as it attempts to review the judgment of the district court awarding $28,673.16 to appellee.

Appellants are hence confined to questioning that part of the judgment entered against them granting appellee the sum of $1,903.02; this money will be paid from appellants' pockets, not from the fund, but only because appellants "pocketed" attorneys' fees before filing suit.

Since the right of appellee to the $1,903.02 depends upon its lien upon the full amount of taxpayer's profits from the construction contract, the validity of that lien is determinative of the issue between the parties.

The undisputed facts show that as...