South Side Trust Co. v. Watson

Decision Date08 November 1912
Docket Number1,614.
PartiesSOUTH SIDE TRUST CO. v. WATSON. In re HERRICK.
CourtU.S. Court of Appeals — Third Circuit

Alpern & Seder and Lowrie C. Barton, all of Pittsburgh, Pa., for appellant.

Lawrence P. Monahan, of Pittsburgh, Pa., for appellee.

Before GRAY, BUFFINGTON, and McPHERSON, Circuit Judges.

J. B McPHERSON, Circuit Judge.

This is an appeal by the trustee from the allowance of a claim for rent against the bankrupt estate.

For the purposes of this case we assume that in February, 1911, a written instrument was executed, whereby the bankrupt became the lessee of certain premises for one year from May 1st at the monthly rent of $175, payable in advance. The adjudication was entered January 3, 1912, on a voluntary petition, and on the same day the South Side Trust Company of Pittsburgh, was appointed receiver-- afterwards becoming the trustee. The rent was then in arrears for November December, and January; but this sum has been paid and is not in dispute. On April 17th the referee allowed the landlord's claim for the remaining three months of the term-- February, March, and April-- and it is this allowance that is complained of. In our opinion it should not have been made, as we think will sufficiently appear from these additional facts:

On January 18th the receiver sold certain personal property of the bankrupt upon the leased premises. Before that day the rent for the month had been paid, and, as the Trust Company was in possession, it allowed the purchaser, Louis Shoop, a reasonable time to remove the goods. As the referee has found:

'* * * It further appears from the testimony that, the rent for January having been paid by the trustee, the trustee informed the purchaser that he would have a reasonable time to get the property sold to him off the premises; the idea of Mr. Kirsch, the secretary of the South Side Trust Company, the trustee in the case, being that Shoop would remove the goods in a few days, or at least before the end of the month. The lease was not sold, and Mr. Kirsch expressly disclaims any arrangement by which the purchaser, Shoop, secured from him any tenancy of the premises.'

But the purchaser began to sell at auction, and this conduct is said to have annoyed the neighbors and offended the landlord. At all events, the landlord determined to exercise the following power reserved in the lease by paragraph 9:

'Upon breach or violation of any of the foregoing covenants, the said lessor shall have the right, in addition to the other remedies provided by law and hereinafter reserved, to forfeit the lease, and, upon five days' notice, to enter and repossess himself of said premises as of his original estate therein; and, further, the said lessee hereby authorizes and empowers any attorney of record to appear and confess judgment against him in any amicable action of ejectment for the premises above described, and to issue at once a writ of fi. fa. for all costs,' etc.

Accordingly an amicable action was brought on January 24th, in which the landlord declared:

'This judgment in ejectment for the said premises is entered upon a determination of the said lease by virtue of default of the said Jacob Herrick in the performance of his agreement to pay the consideration mentioned in said lease, as the same fell due according to the terms thereof, and in permitting the same to be in arrears and unpaid, and in the abandonment of the said premises by the said lessee following bankruptcy of said lessee, and for the purpose of obtaining possession of said premises from one Louis Shoop, who now is in possession of the same without any legal right or authority. Wherefore the said lease has absolutely ceased and determined, which absolute ceasing and determining of the said lease the said (landlord) hereby declares and avers.'

Whereupon the landlord's attorney entered an appearance for the bankrupt and on January 24th confessed a judgment in ejectment for the premises. On the same day a writ of habere facias possessionem was issued, and on January 29th the sheriff returned that he...

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7 cases
  • Oldden v. Tonto Realty Corporation, 282.
    • United States
    • U.S. Court of Appeals — Second Circuit
    • 17 Mayo 1944
    ...stipulation for damages contained in the lease, a re-entry did release the tenant from liability for future rents. South Side Trust Co. v. Watson, 3 Cir., 200 F. 50; In re Gallacher Coal Co., D.C.N.D. Ala., 205 F. 183; In re H. M. Lasker Co., 3 Cir., 251 F. 53, certiorari denied Meyran v. W......
  • In re Barnett
    • United States
    • U.S. Court of Appeals — Second Circuit
    • 8 Marzo 1926
    ...he could not claim rent for the balance of the term, notwithstanding the clause in the lease above mentioned. In South Side Trust Co. v. Watson, 200 F. 50, 118 C. C. A. 278, the lease provided that, in case of the bankruptcy of the lessee, the lessor might demand and receive the rent for th......
  • Manhattan Properties v. Irving Trust Co Brown v. Same
    • United States
    • U.S. Supreme Court
    • 5 Febrero 1934
    ...differing from that elsewhere recognized, are not inconsistent with it. See Wilson v. Pennsylvania Trust Co., 114 F. 742; South Side Trust Co. v. Watson, 200 F. 50; In re H. M. Lasker Co., 251 F. 53; Rosenblum v. Uber, 256 F. 584. The Court of Appeals of the Seventh Circuit has not discusse......
  • In re Keith-Gara Co.
    • United States
    • U.S. District Court — Eastern District of Pennsylvania
    • 13 Marzo 1913
    ... ... although dissatisfaction is apparent now and then. Wilson ... v. Trust Co., 52 C.C.A. 374, 114 F. 742; Winfield Mfg ... Co. (D.C.) 140 F. 185 ... ...
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