Opinion
Decided April 24, 1931.
Bankruptcy — Creditor, holding guaranty of third party, not secured creditor, when — Creditor not estopped to sue on guaranty by proving claim as unsecured — Error proceedings — Agreed statement of facts not considered unless incorporated in bill of exceptions.
1. Creditor holding guaranty of third party and in no wise secured by any property of bankrupt held not "secured creditor" within Bankruptcy Act (Section 1 (23), Bankruptcy Act; Title 11, Section 1 (23), U.S. Code).
2. Creditor, by making proof of claim before bankruptcy referee by filing affidavit, with referee, that creditor had not received any manner of security for debt, held not estopped from maintaining suit on guaranty; guarantor not being prejudiced.
3. Agreed statement of facts, not contained in any bill of exceptions, could not be considered in a proceeding in error.
ERROR: Court of Appeals for Erie county.
Messrs. King, Ramsey Flynn, for plaintiff in error.
Mr. George C. Steinemann, for defendant in error.
Armour Company sued Leonard Bickley to recover on a written guaranty which he had signed for one Joseph C. Walland. A jury was waived, and on trial the plaintiff recovered a judgment for $360.57.
Walland was a retail dealer in meats in Sandusky, and induced Bickley to sign a guaranty with him for meats to be furnished by Armour Company. That company furnished meats within the terms of the guaranty, the amount thereof not being in controversy. Thereafter Walland was duly declared a bankrupt in the federal court. All these facts are admitted by the pleadings. The defendant, however, set up as a defense that Armour Company filed a proof of its claim before the referee in bankruptcy, in which affidavit it set forth "that said corporation has not nor has any person by its order, or to the knowledge or belief of said deponent, for its use, had or received any manner of security for said debt whatever." The defendant contended, and as plaintiff in error now contends, that by making this proof of claim the company is estopped from maintaining this action.
We do not find the elements of estoppel present in this case. Bickley suffered no detriment or prejudice by reason of the making of the proof of claim phrased as above stated. Furthermore, the guaranty held by Armour Company was that of a third party, and was in no wise secured by any property of the bankrupt, and therefore Armour Company was not a secured creditor within class 23, Section 1, of the Bankruptcy Act (Title 11, Section 1 (23), U.S. Code). As was held in Bank of Searcy v. Merchants Grocer Co., 123 Ark. 403, 185 S.W. 806, the fact that the debt of a bankrupt is secured by collateral other than that of the bankrupt himself does not make it a secured claim within the meaning of the Bankruptcy Act. See, also, Collier on Bankruptcy, page 28; In re Otto F. Lange Co., (D.C.), 170 F., 114; Gorman v. Wright, (C.C.A.), 136 F., 164.
We call attention to the fact that the parties are relying, in this case, on an agreed statement of facts, but that is not contained in any bill of exceptions, and, indeed, no bill of exceptions was taken, so that the agreed statement of facts cannot be considered by this court. However, the controlling facts are not in dispute in the pleadings, and no reply was filed, so that the averments relating to the proof of claim are not denied.
Judgment affirmed.
LLOYD and WILLIAMS, JJ., concur.