In re Bell Engraving Co. , 214 F. 510 ( 1914 )

DICKINSON, District Judge.

This case was presented to us under a misnomer. The question, as is clearly shown by the learned referee’s report, is not whether the landlord’s claim for rent has, under the facts of this case and the law applicable thereto, priority of payment, but whether there was in fact any rent due and payable. Its priority of payment, if owing, or, in other words, the preference in payment accorded to it, is conceded. What' is denied is that any rent is owing. It is further admitted that the sum claimed is owing to the landlord. The only question is whether this sum is owing on a rent account which by law has priority in payment, or whether it is owing on another account to which the incident of preference in payment does hot attach.

Priority in payment is merely the result, of a decision of the other question in favor of the landlord. In itself there is no question either raised or possible. Whether any rent is owing would, at the most, be a question of application of payments under the well-known rules pertaining to that subject in Pennsylvania. This would be, if it arose here, in some of its aspects a legal question. Under the conditions of this case, neither it nor any legal question arises. The only possible question which could arise is one of the correctness of the findings of the referee upon a pure question of fact, which was to be determined upon the testimony of the witnesses and evidence in the form of what might be called bookkeeping entries, which were submitted to and inspected and analyzed by him.

Under all the evidence, oral and documentary, the referee has found that the parties, when competent to contract, agreed for mutual good considerations that the so-called payments, which were in reality a counter indebtedness of the landlord to the bankrupt, should be applied as it arose to the other indebtedness of the bankrupt to the landlord. This fact (unless the finding is overturned) admittedly leaves tb,e rent claijn unpaid. Nothing has been shown to the court to justify the disturbance of the finding.

The findings'of the referee are therefore approved, and the order made by him affirmed.