Milton C. Charles v. William N. Bowie, Jr., as Trustee in Bankruptcy of American Aeronautics Corporation, Bankrupt

In the United States District Court for the Southern District of California, American Aeronautics Corporation, hereafter called American, was adjudged a bankrupt, 1 the case was referred to a referee, and appellee, William N. Bowie, Jr., was appointed trustee. Thereafter, on February 3, 1956, appellant, Milton C. Charles, a public accountant, filed with the referee a petition alleging that “on or about February 15, 1955, [American], in writing, and for a present and valuable consideration, assigned to [appellant] the sum of $4,-000 from a Federal income tax refund due from the Director of Internal Revenue;” that said income tax refund had been received by appellee “in an amount of approximately $9,600;” and that appellee had refused “to pay from said sum the amount of [appellant’s] assignment.” 2 The petition prayed (1) for an order requiring appellee to show cause why he should not be ordered to pay appellant $4,000 “from the proceeds of the Federal income tax refund in the possession of [appellee];” and (2) “for such other and further relief as to the court seems just.”

Thereupon, on February 3, 1956, the referee issued an order requiring appellee to show cause on February 9,…

(concurring) .

I concur in the opinion, but desire to add to it two short comments.

First: I do not overlook in the transcript a passing reference made by counsel for appellant at the time of the hearing before the referee to the effect that a refund “has been received and is in the possession of the Trustee in bankruptcy and he has refused to pay it over.” This statement, in the absence of evidence or stipulation, does not prove the fact; nor can this Court accept it as a fact established by the record.

Second: Judge Mathews’ opinion states that the assignment is prospective only, and that Charles cannot prevail. I agree. But I would meet the further point urged on the appeal — that the referee erred in refusing to consider parol evidence as to. the true intent of the parties. The referee committed no error, because the language of the document needs no interpretation. The instrument is an integrated writing, and the parol evidence rule applies. Had the referee permitted the oral testimony to vary the clear terms of an integrated document, he would then have committed error.

245 F.2d 109 Milton C. CHARLES, Appellant, v. William N. BOWIE, Jr., as Trustee in Bankruptcy of American Aeronautics Corporation, Bankrupt, Appellee. No. 15302. United States Court of Appeals Ninth Circuit. May 15, 1957. Marvin Gross, Anthony T. Carsola, Beverly Hills, Cal., for appellant. Haskell H. Grodberg, Los Angeles, Cal., for appellee. Before MATHEWS, CHAMBERS and BARNES, Circuit Judges. MATHEWS, Circuit Judge. 1 In the United States District Court for the Southern District of California, American Aeronautics Corporation, hereafter called American, was adjudged a bankrupt, 1 the case was referred to a referee, and appellee, William N., Bowie, Jr., was appointed trustee. Thereafter, on February 3, 1956, appellant, Milton C. Charles, a public accountant, filed with the referee a petition alleging that 'on or about February 15, 1955, (American), in writing, and for a present and valuable consideration, assigned to (appellant) the sum of $4,000 from a Federal income tax refund due from the Director of Internal Revenue;' that said income tax refund had been received by appellee 'in an amount of approximately $9,600;' and that appellee had refused 'to pay from said sum the…