other non-provable claims.37 It seems also that the mere bankruptcy of the tenant will not justify a reëntry on the part of the landlord unless and until there is an actual default in the payment of rent, or the performance of some other condition, in the absence of a provision in the lease allowing reëntry for bankruptcy. On account of these hardships a few decisions under the present Federal Statute have held that bankruptcy altogether terminates a lease; 38 but there seems no foundation in principle for such a conclusion. If logically followed it would deprive the trustee in bankruptcy of any right to assume a lease; and the view will doubtless be generally accepted that bankruptcy of the tenant does not of itself sever the tenancy.39 § 1986. Quasi-contractual obligations. Quasi-contractual obligations even if based on a waiver of tort are provable; 40 though tort claims unless reduced to judgment are not provable. Whenever at common law a creditor has an election whether to base his claim on a tort, or to waive the tort and base his claim on a quasi-contractual obligation, not only may he by making the latter election entitle himself to prove in bankruptcy, but he is virtually compelled to make the election, since a discharge of the tort-feasor in bankruptcy will bar the claim in both aspects, 42 unless it is within the classes "In re Roth, 181 Fed. 667, 104 C. C. A. 649; Coleman v. Withoft, 195 Fed. 250, 115 C. C. A. 222; In re Mullings Clothing Co., 252 Fed. 667, 669. Such was the rule in England before the statutory change referred to in the text. Copeland v. Stephens, 1 B. & Ald. 593. And in the United States in the absence of statutory change. In re Ells, 98 Fed. 967; Bosler v. Kuhn, 8 Watts & S. 183. 38 In re Jefferson, 93 Fed. 948; Bray v. Cobb, 100 Fed. 270 (rev'd in Cobb v. Overman, 109 Fed. 65, 48 C. C. A. 223, 54 L. R. A. 369); In re Hinckel Brewing Co., 123 Fed. 942. 39 Watson v. Merrill, 136 Fed. 359, 69 C. C. A. 185; In re Pettingill, 137 Fed. 143; In re Roth, 174 Fed. 64, 181 Fed. 667, 670, 104 C. C. A. 649; 40 Crawford v. Burke, 195 U. S. 176, 25 S. Ct. 9, 49 L. Ed. 147; Clarke v. Rogers, 183 Fed. 518, 106 C. C. A. 64. 41 Schall v. Camors, 40 S. Ct. 135; In re New York Tunnel Co., 159 Fed. 688, 86 C. C. A. 556; Clarke v. Rogers, 183 Fed. 518, 106 C. C. A. 64; In re Ostrom, 185 Fed. 988. 42 Crawford v. Burke, 195 U. S. 176, 25 S. Ct. 9, 49 L. Ed. 147; Tindle v. Birkett, 205 U. S. 183, 27 S. Ct. 493, 51 L. Ed. 762; Frederic L. Grant Shoe Co. v. W. M. Laird Co., 212 U. S. of claims excepted by the statute from the effect of a discharge. This result is not wholly free from difficulty since the creditor's alternative rights frequently involve different measures of damages, and it is hard to justify logically the conclusion that he must perforce elect to treat his claim as contractual and therefore provable, rather than as a pure tort and therefore not provable and not affected by the debtor's discharge."3 § 1987. Bilateral contracts. Where default has been made in a bilateral contract prior to the filing of the petition, there is no doubt that the injured party has a provable claim for the amount of damage which would be recoverable had there been no bankruptcy. It may be supposed, however, that at the time of filing the petition the bankrupt is not yet in default, either because the time for performance of his obligation has not yet arrived, or because that part of the performance which has become due has been performed. Here there is a contingency as to his future liability. It may be that before the time for performance or for completing performance occurs, the other party to the contract will himself have made default. Even though the future performance of the bankrupt is due before the performance by the other party, a contingency exists. It can hardly be supposed that the solvent party will perform unless the prior obligation of the bankrupt has been completely performed; the bankruptcy makes it improbable that it will be completely performed, and since this is the case no proof would be justifiable for the full amount of the bankrupt's obligation. On principle, the solution of the question depends upon the provability and proper valuation of contingent claims. And the same uncertainty of decision in the lower Federal Courts which prevailed concerning the proof of other contingent claims, also prevailed concerning the right of the solvent party to such a bilateral contract to prove against his bankrupt co-con 445, 448, 29 S. Ct. 332, 53 L. Ed. 591. Cf. McIntyre v. Kavanaugh, 242 U. S. 138, 61 L. Ed. 205, 37 S. Ct. 38; Schall Camors, 40 S. Ct. 135. ບ. 43 In Parker v. Norton, 6 T. R. 695, the court held that a right of action in trover was not barred by the defendant's discharge in bankruptcy though the plaintiff had an alternative right to sue in contract and had he elected that remedy the discharge would have been a bar. tractor.44 The question has finally been settled by a decision of the Supreme Court of the United States allowing the proof.45 The result reached is unquestionably desirable but the ground on which the court put the decision, namely, that bankruptcy is an anticipatory breach, seems open to criticism. 46 The difficulty originated in the unfortunate omission from the Bankruptcy Statute of a provision expressly allowing proof of contingent claims. § 1988. Contingent debts under early English statutes. Most of the difficult questions in regard to what claims are provable under the present Federal statute relate to contingent claims and it is, therefore, desirable to understand the history of such claims in bankruptcy law. Under the early English bankruptcy statutes, contingent debts were not provable. The first provision for them was made by the statute of 1825.47 This statute was construed somewhat narrowly, and it was held that "there must not only be a debt or engagement to pay a definite sum, but also that the contingency on which the debt was payable should be one reducible to a matter of calculation; so as to allow a value to be put on the debt for the purpose of proof." 48 The Act of 1849 49 reënacted the provision of the previous act, and added a further provision allowing valuation and proof of "a liability to pay money upon a 44 Some of the cases are cited and discussed in Re Imperial Brewing Co., 143 Fed. 579, which denied the right to prove. In the following cases also an unmatured obligation on a bilateral contract was held not provable. Re Inman, 171 Fed. 185, 175 Fed. 312; Re Morgantown Tin Plate Co., 184 Fed. 109; Re American Vacuum Cleaner Co., 192 Fed. 939. Proof was allowed in Re Adams, 130 Fed. 788; Re Neff, 157 Fed. 57, 84 C. C. A. 561; Re Dunlap Carpet Co., 163 Fed. 541; Re DuQuesne Incandescent Light Co., 176 Fed. 785; Re D. C. Clark Shoe Co., 211 Fed. 341. 45 Central Trust Co. v. Chicago Auditorium Assoc., 240 U. S. 581, 36 S. Ct. Rep. 412, 60 L. Ed. 811. 46 See supra, § 1327. 47 6 Geo. IV. c. 16, sec. 56. 48 Robson on Bankruptcy (7th ed.), 272; and see Atwood v. Partridge, 4 Bing. 209; Boorman v. Nash, 9 B. & C. 145; Ex parte Tindall, Mont. & Mac. 415; Yallop v. Ebers, 1 B. & Ad. 698; Ex parte Marshall, 1 Mont. & Ayrt. 118; Thompson v. Thompson, 2 Bing. N. C. 168; Green v. Bicknell, 8 A. & E. 701; Field v. Toppin, 4 Q. B. 386; Ex parte Whitmore, 3 De G. & S. 565; Hinton v. Acraman, 2 C. B. 367; Woolley v. Smith, 3 C.B. 610; Wallis v. Swinburne, 1 Ex. 203; Ex parte Evans, 3 De G. & S. 561; South Staffordshire Ry. Co. v. Burnside, 5 Ex. 129. 49 12 & 13 Vict. c. 106, Secs. 177, 178. contingency which shall not have happened." This was obviously intended to cover the cases which had been held not included under the words contingent debts, but the courts construed the word "liability" narrowly, holding that the "liability must to be pay a sum of money of certain amount, or at all events a sum the amount of which could be ascertained by some settled data; and that the contingency on which the liability depended must not be too remote, but that there must be a single contingency reducible to a matter of calculation, and capable of valuation." 50 The next statute (in 1861) 51 made no further direct provision for proof of contingent liabilities than the preceding acts, but it contained a provision for the assessment of damages in claims for unliquidated damages growing out of contracts. This was held to include such liabilities only as arose from breach of an express contract before bankruptcy.52 § 1989. Contingent debts under recent English statutes. In 1869, however, an adequate statutory provision was made, 53 which so far as affects contingent liabilities has been repeated in the Act of 1883, now in force. Under this provision the only ground for refusing proof of a contingent liability is, that it is impossible fairly to estimate the value of the claim. Under this section it has been held that there may be proof of damages caused by the failure of a trustee in bankruptcy to take a lease as the bankrupt had agreed to do; 54 for breach of an agreement to furnish steam power, though the agreement was determinable on a certain contingency; 55 for failure to pay 50 Robson on Bankruptcy (7th ed.), 275; and see Amott v. Holden, 18 Q. B. 593; Warburg v. Tucker, 5 E. & B. 384; Young v. Winter, 16 C. B. 401; Maples v. Pepper, 18 C. B. 177; Ex parte Todd, 6 D. M. & G. 744; Hoare v. White, 3 Jur. (N. S.) 445; White v. Corbett, 1 E. & E. 692; Boyd v. Robins, 5 C. B. (N. S.) 597; Adkins v. Farrington, 5 H. & N. 586; Parker v. Ince, 4 H. & N. 53; Mudge v. Rowan, L. R. 3 Ex. 85; Betteley v. Stainsby, L. R. 2 C. P. 568; Martin's Anchor Co. v. Morton, L. R. 3 Q. B. 306; Hastie's Case, L. R. 7 Eq. 3, 4 Ch. App. 274; Ex parte Wiseman, L. R. 7 Ch. App. 35; Kent v. Thomas, L. R. 6 Ex. 312. 51 24 & 25 Vict. c. 134, sec. 153. 52 Ex parte Mendel, 1 De G. J. & S. 330; Sharland v. Spence, L. R. 2 C. P. 456; Cary v. Dawson, L. R. 4 Q. B. 568; Johnson v. Skafte, L. R. 4 Q. B. 700. 53 32 & 33 Vict. c. 71, sec. 31. 54 Ex parte Llynvi Coal Co., L. R. 1 Ch. App. 28. 55 Ex parte Waters, L. R. 8 Ch. App. 562. an annuity; 56 for a surety's right to indemnity or contribution, though contingent on future events; 57 and for the possible liability of a stockholder for future calls. 58 60 Some rights, however, cannot fairly be valued, and hence are not provable; as a covenant not to revoke a will; 59 a possibility of having to pay costs to assert a legal right; 60 future liability for alimony.61 But all claims must be presented to the bankruptcy court, for unless an order is made by it declaring that the value of a claim cannot fairly be estimated, it will be held to be barred.62 § 1990. Contingent debts under early bankruptcy laws in the United States. Under the Federal Bankruptcy Acts of 1841 and 1867, express provision was made for the proof of contingent claims.63 Under these provisions a contingent liability was held provable if its value could fairly be calculated but otherwise not. The possible liability of a surety on a bond not defaulted was held not provable under the act of 1841.64 Under the law of 1867 the courts went farther. It was held that a claim against the surety on a bond was provable though the liability of the principal had not been fixed.65 A claim against the principal on a replevin or attachment bond was also held provable,66 though it had not been determined at the time of bankruptcy whether there would be any liability on the bond. Likewise 56 Ex parte Jackson, 20 W. R. 1023. 57 Ex parte Delmar, 38 W. R. 752; Wolmershausen v. Gullick, [1893] 2 Ch. 514; In re Paine, [1897] 1 Q. B. 122. 58 Re Mercantile Marine Ins. Assn., 25 Ch. D. 415; Re McMahon, [1900] 1 Ch. 173. 59 Robinson v. Ommanney, 21 Ch. D. 780, 23 Ch. D. 285. 60 Vint v. Hudspith, 30 Ch. D. 24. 61 Linton v. Linton, 15 Q. B. D. 239. 62 Hardy v. Fothergill, 13 App. Cas. 351. 63 Riggin v. Magwire, 15 Wall. 549, 21 L. Ed. 232; United States v. Throckmorton, 8 Bnk. Reg. 309. 64 Turner v. Esselman, 15 Ala. 690; Woodard v. Herbert, 24 Me. 358; 65 United States v. Throckmorton, 8 B. R. 309; Jones v. Knox, 46 Ala. 53, 7 Am. Rep. 583; Fisher v. Tifft, 127 Mass. 313 (see also McDermott v. Hall, 177 Mass. 224); Fisher v. Tifft, 12 R. I. 56. But see contra, United States v. Rob Roy, 13 B. R. 235; Steele v. Graves, 68 Ala. 21 (overruling Jones v. Knox, 46 Ala. 53, 7 Am. Rep. 583). 66 Wolf v. Stix, 99 U. S. 1, 25 L. Ed. 309; Hill v. Harding, 130 U. S. 699, 32 L. Ed. 1083, 9 S. Ct. 725. |