STENNICK v. JONES et al.

STENNICK v. JONES et al. (Circuit Court of Appeals, Ninth Circuit. June 2, 1919.) No. 3139. Suit by Parker Stennick, trustee in bankruptcy of the Hamilton Creek Timber Company and the Rainier Lumber & Shingle Company, against Willard N. Jones, Fred A. Kribs, and the J. K. Lumber Company. From the decree, complainant appealed. On appellant’s motion in respect to the item of $50,000, referred to in the memorandum opinion filed on motions and counter motions for modification of original opinion and decision of this court, and appellees’ motion with respect to costs. Motion for modified order in respect to costs denied. [MAJORITY — PER CURIAM.] PER CURIAM. Upon further consideration of the matter, we hold that when an accounting is had the item of $50,000 referred to in the memorandum opinion (256 Fed. 354, - C. C. A. -) filed as an addendum to our original opinion (252 Fed. 345, 164 C. C. A. 269) should not be allowed as a set-off, for the reason that defendants averred in their answer that they never sought to exorcise any of the options in the contract executed by Dodge and his companies to secure defendants in lending their names for the loan of the $50,000, and that they never attempted to enforce any of the security given them by such contract, and that they “disclaim all rights under or interest in said contract,” and that the claim of Jones and Kribs for the $50,000 has been proved as an unsecured claim agitinst the bankrupt estates, and that the J. K. Lumber Company never has had any interest in or attempted to assert any rights under the contract of security for the loan. Considering these averments, our Judgment is that appellees ought hot to gain any special advantage over other creditors in respect to this $50,000. Appellees’ motion for modified order in respect to costs is denied. Mandate forthwith.