Mizell v. Elmore & Hamilton Contracting Co.

U.S. Court of Appeals for the Second Circuit
Mizell v. Elmore & Hamilton Contracting Co., 219 F. 528 (2d Cir. 1914)
135 C.C.A. 278; 1914 U.S. App. LEXIS 1671

Mizell v. Elmore & Hamilton Contracting Co.

Opinion of the Court

LACOMBE, Circuit Judge.

Mike Elmore was the president, a director, and stockholder of the company. He died May 10, 1910, before receiver waá. appointed. The claim is for salary alleged to be due him from January 1, 1908, to the day of his death. What were the services which this sum represents does not appear. The only proofs offered in support of the claim are certain unexplained entries in the books of the corporation. The first of these is dated January 31, 1910, and reads:

“Mike El more a/c salary from Jan. 1, 1908, to Jan. 1, 1910, 24 months, at $500 per month, $12,000.”

*529Five other entries at monthly intervals read:

“Salary for month of January [or some other month], 1910, $500.”

The special master disallowed the claim, and the court affirmed his action. Without now expressing any opinion as to the proposition advanced by the receiver that a corporation cannot agree to pay one of its officers for special services rendered, unless such agreement antedates the rendition of the services, we think the order should be affirmed, because there is not sufficient proof to support the claim. Whatever may be the effect of entries to the credit of an individual on the books of a corporation, when the controversy is between that individual (or his successor) and the corporation, we are satisfied that when a claim against the receiver of a corporation, who represents other creditors (as well as the corporation), is evidenced solely by such entries as these proved here — the first entry being of a most unusual, not to say suspicious, character — something more than the entries is required to make out a prima facie case.

The order is affirmed, with costs.

Reference

Full Case Name
MIZELL v. ELMORE & HAMILTON CONTRACTING CO.
Status
Published