Slocum v. Soliday

• Citation: 183 F. 410
• Decision Date: 01 December 1910
• Docket Number: 885.
• Parties: SLOCUM et al. v. SOLIDAY.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

183 F. 410

SLOCUM et al. v. SOLIDAY.

No. 885.

United States Court of Appeals, First Circuit.

December 1, 1910

Harold Williams, Jr. (Wilmot R. Evans, Jr., on the brief), for appellants.

Henry T. Richardson, for appellee.

Before COLT and PUTNAM, Circuit Judges, and ALDRICH, District Judge.

PUTNAM Circuit Judge.

This is an appeal from a decree in bankruptcy cutting down a proof of claim offered by the appellants. The appellants are testamentary trustees, owning lands and buildings which were leased to the French Carriage Company, of which Soliday, the appellee, is trustee in bankruptcy. The petition in bankruptcy was involuntary, and was filed on November 19 1909, with an adjudication on December 6, 1909. The letting of the premises was by an indenture under seal, which was to expire on December 31, 1910. The proof covered all rent in arrears, and also the equivalent of the rent for the unexpired time to the end of the lease. A credit was given for payment by the receiver in bankruptcy during his occupancy, leaving the balance of the claim as proved $14,265.29. On the rehearing of the proof, the referee reduced it to $3,102, which ruling of the referee was sustained by the District Court. Thereupon appeal was taken to us. The $3,102 was the admitted amount of the rent to the time of the filing of the petition in bankruptcy.

The lease contained no special provisions, except the following:

'This lease is made on condition, also, that if the lessee shall neglect or fail to perform or observe any of the covenants herein contained on the lessee's part to be performed or observed, or if the estate hereby created shall be taken on execution or other process of law, or if the lessee shall petition to be or be declared bankrupt or insolvent according to law, or if a receiver, guardian, conservator, or other similar officer shall be appointed to take charge of any part of the property of, or to wind up the affairs of, the lessee, or if any assignment shall be made of the lessee's property for the benefit of creditors, then, and in either of the said cases, the lessor lawfully may, immediately or any time thereafter, and without demand or notice, enter into and upon the demised premises, or any part thereof, in the name of the whole, and repossess the same as of his former estate, and expel the lessee and those claiming through or under him, and remove the effects of both or either (forcibly, if necessary), without being deemed guilty of any manner of trespass, and without prejudice to any remedies for arrears of rent or preceding breach of covenant, and upon entry as aforesaid the lessee's estate shall end. And the lessee covenants that in case of such termination, or of termination under the provisions of statute by reason of default on the part of the lessee, the lessee will, at the election of the lessor (which election may be made or changed at any time), either (a) pay to the lessor sums equal to the rent and other payments herein named at the same times and in the same installments, or, if the premises shall have been relet, sums equal to the difference between the aforesaid and the sums actually received by the lessor in proportionate installments, as liquidated damages for so much of the unexpired term as is represented by such installments; or (b) pay to the lessor, as damages, a sum which at the time of such termination, or at the time to which installments of liquidated damages shall have been paid, represents the difference between the rental value of the premises and the rent and

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