Erickson

This appeal has been taken from an order of the bankruptcy court confirming an order of a referee allowing as a general claim against the bankrupt estate the claim for $260,200 presented by appellee.

It appears from the agreed statement that prior to January 21, 1935, appellee, as superintendent of banks of the state of California, took possession and charge of the assets of the Bank of San Pedro, an insolvent banking corporation, under authority of the statutes of California. At that time bankrupt owned 2,602 shares of the common capital stock of said bank which had a par value of $100 per share.

On January 21, 1935, the bankrupt filed his voluntary petition in bankruptcy, and was thereupon adjudicated bankrupt. Thereafter appellant was appointed trustee of the bankrupt estate. There is no evidence of any attempt of the appellant to decline to accept the statutory transfer of the bank stock, if that were possible. Cf. Gross v. Irving Trust Co., 289 U.S. 342, 344 , 53 S.Ct. 605 , 77 L.Ed. 1243 , 90 A.L.R. 1215 .

Act 652a, 1 General Laws, California, 1931, p. 314, provides:

“The stockholders of every banking corporation organized under the laws of the state of California shall…

I dissent.

The Bankruptcy Act, § 63 ( 11 U.S.C.A. § 103 ), provides that: “Debts of the bankrupt may be proved and allowed against his estate which are * * * founded upon * * * a contract express or implied.” The statute does not say how much of the foundation of the debt must be contractual. It seems to me that there could be only three possible theories with respect to that question.

First. One possible theory is that when the statute says a debt must be “founded upon a contract,” it means that the debt must be “wholly” or “entirely” founded upon a contract. If that construction is correct, it is clear that the claim before us is not provable. McClaine v. Rankin, 197 U.S. 154 , 25 S.Ct. 410 , 49 L.Ed. 702 , 3 Ann.Cas. 500; Christopher v. Norvell, 201 U.S. 216, 225, 228 , 26 S.Ct. 502 , 50 L.Ed. 732 , 5 Ann.Cas. 740.

Second. Another possible theory is that if any part of the foundation of the debt is contractual in its nature, the claim is provable.

Some of the early decisions of the Supreme Court contain expressions indicating that the liability of a stockholder in a national bank is contractual in its nature. Richmond v. Irons, 121 U.S. 27, 55 , 7 S.Ct. 788 , 30 L.Ed. 864 ;…