Stalick v. Slack

• Decision Date: 15 November 1920
• Docket Number: 5527.
• Citation: 269 F. 123
• Parties: STALICK v. SLACK.
• Court: U.S. Court of Appeals — Eighth Circuit

269 F. 123

STALICK v. SLACK.

No. 5527.

United States Court of Appeals, Eighth Circuit.

November 15, 1920

A. M Edwards, of Santa Fe, N.M., for appellant.

A. T Hannett, of Gallup, N.M., for appellee.

Before SANBORN and CARLAND, Circuit Judges, and MUNGER, District judge.

MUNGER District Judge.

The appellant, Stalick, filed a claim against the estate of the bankrupt, which was disallowed by the referee in bankruptcy. He petitioned the District Court to review that order. The District Court affirmed the order of the referee, and from that order this appeal is prosecuted. The appellant's contention is that his claim is for the value of a large amount of whisky which was stolen from him by the bankrupt and that he is entitled to have his claim allowed notwithstanding the provisions of the Constitution of New Mexico forbidding the sale or barter of alcoholic beverages.

An examination of the record discloses the fact that no copy of appellant's claim is set forth. The case was heard before the District Court upon a certificate and order of the referee. The referee endeavored to follow the directions of General Order in Bankruptcy No. 27, by certifying to the judge the question presented, and the finding and order of the referee thereon. His certificate shows that Stalick began an action at law in the state court of New Mexico against the bankrupt, alleging that the bankrupt had stolen the whisky and thereby caused him damages; that under the laws of New Mexico attachments may be issued against the defendant's property in actions for torts; that Stalick procured an attachment to be issued in his action, and to be levied on the bankrupt's property, but that there was an adjudication in bankruptcy before a trial of his case could be had in the state court; and that this adjudication vacated the attachment.

On this statement of facts the referee found as a conclusion of law that claims founded solely in tort, and not reduced to judgment before the adjudication in bankruptcy, are not provable claims against the bankrupt's estate, and disallowed Stalick's claim. The appellant's petition for review of the order was submitted to the District Court solely on the referee's certificate and the argument of counsel, and the District Court made an order finding that, under the facts as disclosed by the referee's certificate, the cause of action of appellant was in tort, and, if on an express or implied contract, such contract was unenforceable at law, and approved the referee's order.

Among the debts which may be approved and allowed against the estate of a bankrupt by the provisions of section 63 of the Bankruptcy Act (Comp. St. Sec. 9647a (4)) are those which are 'founded upon an open account, or upon a contract, express or implied. ' The appellant contends that his claim was provable under this portion of the statute.

It is an established rule in the national courts that if a bankrupt has become unjustly enriched by his embezzlement, larceny, or conversion of the goods of another, the owner may, if he chooses to do so, waive any action of tort that he might have against the bankrupt for such acts, and prove a claim against the bankrupt's estate for the value of the goods, because the law implies a contractual obligation by the bankrupt to pay the owner therefor. Crawford v. Burke, 195 U.S. 176, 194, 25 Sup.Ct. 9, 49 L.Ed. 147; Tindle v. Birkett, 205 U.S. 183, 186, 27 Sup.Ct. 493, 51 L.Ed. 762; Clarke v. Rogers, 228 U.S. 534, 543, 33 Sup.Ct. 587, 57 L.Ed. 953; Schall v. Camors, 251 U.S. 239, 251, 40 Sup.Ct. 135, 64 L.Ed. 247; Clarke v. Rogers, 183 F. 518, 521, 106 C.C.A. 64; Reynolds v. New York Trust Co., 188 F. 611, 615, 110 C.C.A. 409, 39 L.R.A. (N.S.) 391; Phelps v. Church of Our Lady Help of Christians, 99 F. 683, 684, 40 C.C.A. 72.

But it is also established...