Summary
In Shields v. John Shields Const. Co., 83 N.J. Eq. 21, 89 A. 1022 (Ch. 1914), a corporation borrowed money on two notes, one of which matured the day after the corporation was adjudged insolvent and the other subsequently.
Summary of this case from In re Elsinore Shore AssociatesOpinion
02-16-1914
SHIELDS et al. v. JOHN SHIELDS CONST. CO.
Conover English, of Newark, for Metropolitan Bank. Chauncey G. Parker, of Newark, for receiver.
Bill by John Shields and the Metropolitan Bank against the John Shields Construction Company. Decree for complainant bank.
See, also, 81 N. J. Eq. 286, 86 Atl. 958.
Conover English, of Newark, for Metropolitan Bank. Chauncey G. Parker, of Newark, for receiver.
STEVENS, V. C. In the settlement of the affairs of the defendant, an insolvent corporation, a question has arisen growing out of the following facts:
On September 30, 1905, the construction company applied to the Metropolitan Bank for a loan of $5,000. This loan was granted, and the company gave its note of that date, payable three months thereafter. At the time of the application, its president, John Shields, made a statement signed on behalf of the company containing, among other things, the following stipulation: "In consideration of granting any credit by said bank, the undersigned agree that, in case of failure or insolvency on the part of the undersigned, * * * all or any of the claims or demands against the undersigned, held by said bank, shall, at the option thereof, immediately become due and payable."
On October 16th the company applied for and obtained a further loan of $20,000, evidenced by a four months note. The proceeds of both notes were credited to its account with the bank, and it made, in addition, two deposits, one on October 5th of $7,200, and the other on November 17th, of $5,604.08.
On December 29, 1905, the company was adjudged insolvent, and a temporary receiver appointed. On January 2, 1906, the bank, having received notice of the adjudication, set off against the notes, one of which had matured on December 30th, the balance of $2,422.50, then on deposit, and thereafter proved its claim for the balance due. The question is: Had it a right to make the setoff and then to prove for the difference? The contention of the receiver is that he is entitled to the balance on deposit; and that the bank is entitled only to such dividends on the whole sum due on the notes as might be payable out of the assets.
The question, as I view it, must be resolved by reference to the provisions of our Corporation Act. Section 66 directs the receiver "in case of mutual dealings between the corporation and any person to allow just setoffs in favor of such person in all cases in which the same ought to be allowed according to law or equity." Speaking of this provision, Judge Elmer, in Receivers v. Paterson Gas Light Co., 23 N. J. Law, on page 299, says: "I cannot doubt that it was the intention of the Legislature to give a right of setoff in the case of insolvent corporations, at least to the same extent that it had been previously done between individual debtors. Indeed, there is much reason to believe that it was intended to go farther, and, although it is not necessary now to decide that point, I should be disposed to hold that if the defendants had been, at the time the bank failed, the bona fide holder of its obligation, not yet due when this suit was commenced, they would have been entitled to set it off against their liability on the bill declared on. According to the legal meaning of the expression, these parties would have been 'mutual dealers,' previous to the failure and to the action brought, although they would not have been mutually indebted, and no setoff could have been allowed under the statute of setoff. That statute requires the parties, not only to have been mutual dealers, but to be 'indebted to each other,' whereasthe section requiring receivers of insolvent corporations to allow Just setoffs omits words implying mutual indebtedness, and gives the setoff to all who hold the relation of mutual dealers. The English statutes of bankruptcy allow the setoff where there have been 'mutual credits given,' a phrase which seems to have the same meaning as 'mutual dealing,' for in legal effect, where there has been mutual credit, there has been mutual dealing. Under those statutes, it is well settled that debts not due may be set off against the assignees, as well as those that are." In the case from which this extract is taken it was the defendant's obligation that had not matured at the time the receiver was appointed, whereas here it was the insolvent company's. A distinction has been taken, under the statute allowing setoffs, between the ease of a note or other obligation due to the debtor claiming the right of setoff and a note due by him. In the latter case, it has been held that he may elect to treat his own debt as presently due, and so become entitled to the setoff, while in the former it is said that, as he cannot accelerate the maturity of the debt due to him, he cannot claim the right. Fera v. Wickham, 135 N. Y. 223, 31 N. E. 1028, 17 L. R. A. 456. But the statute allowing setoff in general, as Judge Elmer points out in the above-quoted passage, mentions only "debts or demands which may be due and owing." The language of the Corporation Act is broader.
The Court of Errors has very recently, in the case of Butler v. Commonwealth Tobacco Co., 74 N. J. Eq. 423, 70 Atl. 319, held that our statute, in so far as it deals with insolvent corporations, is essentially a bankrupt act, and that its provisions should be construed accordingly. The Bankrupt Act, § 68, provides that: "In all cases of mutual debts or mutual credits between the estate of a bankrupt and a creditor the account shall be stated and one debt shall be set off against the other, and the balance only shall be allowed or paid." The act not only uses the expression "mutual debts" but the broader phrase, "mutual credits." The expression in our corporation act, "mutual dealings" is, as Judge Elmer points out, broad enough to include them both. It is well settled that in bankruptcy proceedings debts not yet due are the subject of setoff. A late case, in which the law and the reasons for it are clearly stated, is Matter of Philip Semmer Glass Co., 11 Am. Bankr. Rep. 665. A still later case is Frank v. Mercantile Nat. Bank, 182 N. T. 264, 74 N. E. 841, 108 Am. St. Rep. 805, in which Cullen, C. J., holds the same way. He says: "If the defendant's rights depended on the equitable rule of setoff as it obtains in this state, it is clear that the notes held by it (the company) which had not matured at the time of the transfer of the title from the bankrupt to his assignee could not be set off against the plaintiff's claim." But, he adds, the defendant's claim is not based upon the rule in equity but on the provisions of the Bankrupt Law. As to that he says the uniform current of authority in the District and Circuit Courts of the United States, and, he thinks, in the Supreme Court, is to the effect that, as unmatured claims are provable against the bankrupt's estate, they are necessarily the subject of setoff under the provisions of section 68 of the Bankrupt Act. Not only does our act respecting insolvent corporations say that setoff is allowable where the dealings are mutual, but, like the Bankrupt Act, in section 86, it declares that "the creditors shall be entitled to distribution on debts not due, making in such case a rebate of interest, when interest is not accruing on the same." For the purpose of the winding-up proceedings, this section matures the debt at the time of the receiver's appointment. As soon as he is appointed, claims become provable. As our act has been held by the Court of Errors to be a bankruptcy act, and as it contains provisions certainly as broad as the federal Bankruptcy Act, there is every reason why the decisions of the federal courts should be followed. Uniformity in this regard is as desirable as it is in other cases where the state and federal courts exercise a concurrent, or at least a very similar, jurisdiction.
McManus-Kelly Co. v. Pope Manufacturing Co., 70 Atl. 297, is relied upon in opposition to the view here expressed. At the time the opinion in that case was written, the Butler Case had not been reported. Neither it nor the provisions of the corporation act are referred to. The case was regarded as one of equitable setoff, and, so considered, was undoubtedly decided in accordance with the authorities. But to follow the case now would, I think, be to run counter to the principle laid down by the Court of Errors. The case must be decided by the statutory rule applicable to insolvent companies and not by the ordinary rule of equitable setoff.
There is force in the view that the mutual dealings between the Shields Company and the bank were so tied together by the agreement entered into when the first note was discounted that even under the Pope Case, insolvency having supervened, the one claim may be set off against the other, but the other ground is conclusive.