
    358 F. 2d 966
    UNITED PACIFIC INSURANCE COMPANY v. THE UNITED STATES, AND WILLIAM H. KENNEDY, TRUSTEE IN BANKCRUPTCY OF NILS SIGURD ANDERSSON, THIRD-PARTY CLAIMANT
    [No. 292-62.
    Decided April 15, 1966]
    
      
      Edward Gallagher, attorney of record, for plaintiff.
    
      Gerson B. Kramer, with whom was Assistant Attorney General John W. Douglas, for defendant.
    
      8'eymowr L. Ooblens, attorney of record for third-party claimant. Reinhardt, Ooblens <& Stoll, of counsel.
    Before Cowen, Ohief Judge, Laramore, Dureee, Davis and Collins, Judges.
    
   Cowen, Ohief Judge,

delivered the opinion of the court:

The Government is a stakeholder of funds admittedly due for completed performance of a contract. Plaintiff, a surety company which financed contract performance under a questioned assignment, and the third-party claimant, trustee in bankruptcy of the insolvent contractor, are rival claimants for the funds so held. At issue are whether the assignment is valid, and whether payment under it would constitute a voidable preference under Section 60 of the Bankruptcy Act (11 U.S.C. § 96), which the trustee in bankruptcy may treat as void.

Plaintiff is a qualified surety under Oregon law and is also engaged in the general insurance business there. Prior to June 1961, it had issued -to Nils Sigurd Andersson, a contractor, performance and payment bonds covering certain road and bridge contracts in Coos County, Oregon, with the Bureau of Public Boads of the Department of Commerce and with the Oregon State Highway Commission. Anders-son experienced a great deal of financial difficulty in performing the contracts, and as a result he and plaintiff entered into an agreement, on June 28, 1961, whereby a joint control bank account was opened in the First National Bank of Oregon to receive the proceeds payable to Andersson under the federal and state contracts and to apply these receipts to the payment of certain outstanding obligations. Anders-son was insolvent as of the date this Joint Control Agreement was signed, and plaintiff knew it or should have known it. Also, on June 28,1961, as part of the agreement, Andersson executed and delivered to plaintiff an assignment of the proceeds of certain of the contracts entered into with the City of Medford and State of Oregon.

On December 16,1961, Andersson was awarded a purchase order by the Federal Bureau of Public Eoads to remove a slide which had occurred on a newly built road in the area where the above-described contract work had been performed. The purchase order contained no requirement for payment or performance bonds and none were executed. Anxious to perform this prospectively profitable contract, but lacking funds to do so, Andersson, on December 21,1961, requested plaintiff to finance the performance from balances standing in the Joint Control Account. Plaintiff agreed upon Andersson’s promise to furnish an assignment of the proceeds of the contract as security. On December 26,1961, responsible officials of the Bureau of Public Eoads were apprised of plaintiff’s intention to finance this undertaking of Andersson, called the “Baker Slide Job,” and agreed to withhold contract payments from Andersson if plaintiff would furnish documentary compliance with the Assignment of Claims Act (31 U.S.C. §203). An assignment was sent to Andersson for execution on December 29, 1961, and was signed on January 2, 1962. On January 3, 1962, both the executed assignment and a letter from Andersson, dated January 2, were served on the Bureau of Public Eoads.

The assignment in standard form assigned to plaintiff “all monies now due, or which may hereafter become due” to Andersson from the United States under the Baker Slide Job, and plaintiff was authorized to collect and endorse such payments as Andersson’s attorney in fact. The letter from Andersson to the Bureau, which was filed along with the assignment itself, directed that all payments “now due or hereafter to become due, payable to the undersigned [Andersson] from the United States” under the Baker Slide Job “shall be sent in care of United Pacific Insurance Company, 627 Board of Trade Building, Portland, Oregon.” In other words, Andersson’s checks were to be sent to plaintiff. The letter itself did not formally state that funds falling due under the contract were being assigned to plaintiff: it merely directed that all moneys due from the Bureau to Andersson should be sent in care of plaintiff. Although a witness for the Bureau testified that his agency treated the Andersson letter as merely a .change of address rather than a notice of assignment, this contention is untenable within the context of the dealings between the parties involved. The Bureau had knowledge that plaintiff was financing Andersson’s Baker Slide Job, had a copy of the purported assignment of contract proceeds, and promised plaintiff to temporarily withhold payments to Andersson pending perfection of the assignment.

On January 24, 1962, the Bureau of Public Hoads issued a check in the amount of $18,291.04 payable to “Sig Anders-son, % United Pacific Insurance Co., 627 Board of Trade Building, Portland, Oregon”, and mailed it to plaintiff. The check was received by plaintiff, endorsed by one of its officials as Andersson’s attorney in fact, and deposited in the Joint Control Account. The action of the Bureau in making out the check to Andersson and mailing it to plaintiff was consistent with defendant’s recognition of the assignment, for it was known by all parties concerned that plaintiff was Andersson’s attorney under the assignment, that it had authority to endorse checks payable to Andersson for deposit in the Joint Account, and that it was empowered, with An-dersson’s joint signature, to disburse funds on deposit.

On March 6,1962, Andersson was adjudicated a bankrupt, and on that date the balance in the Joint Control Account stood at $13,500.48 — an amount insufficient to cover outstanding bills. In addition, tbe United States at that time owed Andersson a balance of $26,453.15 on the Baker Slide contract. On September 6, 1962, the General Accounting Office offset against the $26,453.75 due the sum of $15,165.44 to cover back taxes owed by Andersson, and thus credited the bankrupt’s account with a total of $11,288.31 on the slide job contract.

In the petition filed in this court plaintiff claims title to the said $11,288.31 by virtue of the June 28,1961, assignment from Andersson. The trustee in bankruptcy filed a third-party petition asserting title to all funds remaining in the hands of the United States on the grounds that the purported assignment of contract proceeds from Andersson to plaintiff was void and ineffectual: (1) because plaintiff, as a surety company, was not a “bank, trust company, or other financing institution” as prescribed by the Assignment of Claims Act; (2) because no “written notice of the assignment” was delivered to the United States as required by the Act; and (3) because the assignment constituted a voidable preference under Section 60 of the Bankruptcy Act.

The parties stipulated before trial that defendant is entitled to its offset for back taxes in the amount of $15,497.29. After the trial commissioner made his report, the United States filed a written disclaimer of any further interest in the case and stated that it has become a mere stakeholder. Consequently, the sole remaining controversy in the case lies between plaintiff and the third-party claimant as to the $10,956.46 ($26,453.75 less $15,497.29) remaining in the Government’s possession as the balance due for performance of the Baker Slide Job.

After commencing its litigation in this court, plaintiff brought suit in the United States District Court for the District of Oregon against the First National Bank and the trustee in bankruptcy, claiming entitlement: (a) to the balance remaining in the J oint Control Account on tbe date Anders-son was adjudicated bankrupt ($13,500.43), and (b) to certain other sums due on contracts from municipal and state authorities ($15,887.58). The District Court awarded judgment to plaintiff on both items. See United Pacific Insurance Co. v. First National Bank of Oregon, 222 F. Supp. 243 (D.C. Ore. 1963).

As to the proceeds due on the state and municipal contracts, the District Court applied the law of suretyship and decided that plaintiff, by virtue of its having discharged its surety obligations by paying out sums in satisfaction of labor and materials claims far in excess of sums received as contract payments, had an equitable right to and lien on these funds superior to that of the trustee in bankruptcy.

In adjudicating the first issue, that of entitlement to the funds in the Joint Control Account, the District Court considered and discussed the effects of the Baker Slide Job. Specifically, the court directed its attention to the questions of whether the sum of $18,291.04 drawn to Andersson’s name by the United States and deposited by plaintiff in the Joint Control Account amounted to a voidable preference, in that it was paid within 4 months of the contractor’s bankruptcy, and whether the assignment under which the check was paid and deposited was void for noncompliance with the Assignment of 'Claims Act. The court dismissed the trustee’s contentions that this or any of the other assignments in question were voidable preferences or an attempt to defraud creditors, for the court found that the assigmnents were made in good faith and for a valuable consideration. As to the Joint Control Account itself, the court decided that, since plaintiff had paid some $24,786.82 out of the account for labor and materials bills incurred in connection with the slide job (substantially more than $18,291.04 received from the United States as contract proceeds), no part of the $13,500.43 remaining on deposit in the account could possibly be Baker Slide money.

The District Court then noted that, although the January 2, 1962, assignment of Baker Slide Job proceeds (the same assignment as that involved in the present litigation) did not comply with, the provisions of 31 U.S.C. § 203, it was valid as between the parties themselves. The court’s opinion pointed out that the Assignment of Claims Act had been enacted for the benefit of the United States alone, and that under the circumstances at hand — since the United States had recognized the Joint Control Agreement and the questioned assignment and in fact had paid the money to a party having a preference under the law of suretyship — the trustee in bankruptcy was in no position to complain.

However, the District Court declined, as a matter of comity, to adjudicate the issues relating to the $10,956.46 admittedly owing by the Government on the Baker Slide Job, since litigation over the entitlement to that fund was pending in the Court of Claims first.

Thus, with respect to the $10,956.46 now held in stake by the Government, we are called to make an adjudication of two of the issues discussed by the District Court — namely, the validity of the January 2, 1961, assignment from Andersson to plaintiff of the proceeds from the Baker Slide Job contract and the existence of a voidable preference under the Bankruptcy Act. On both questions we reach the same conclusion as did the District Court.

There is no need to discuss whether the assignment in question complies with all the provisions of the Assignment of Claims Act, for whether or not the transaction is valid as against the United States, it is in any event effective and binding on the parties. National Bank of Commerce v. Downie, 218 U.S. 345 (1910); Martin v. National Surety Co., 300 U.S. 588 (1937); McKenzie v. Irving Trust Co., 323 U.S. 365 (1945); In re Webber Motor Co., 52 F. Supp. 742 (D.C.N.J. 1943). The statute was designed to protect the United States against frauds on the Treasury and a multiplicity of conflicting claims and to save the United States defenses which it may have to claims by assignors — not to regulate the equities of individual claimants as between themselves. Royal Indemnity Co. v. United States, 117 Ct. Cl. 736, 93 F. Supp. 891 (1950); Beaconwear Clothing Co. v. United States, 174 Ct. Cl. 40, 355 F. 2d 583 (1966). The Government in the case at hand is a mere stakeholder of funds which, are admittedly due to either the trustee in bankruptcy or the surety. Having no interest in the case other than the preservation of its offset for unpaid taxes, defendant has now withdrawn any objection it might have had to the validity of the assignment. Moreover, it should be noted that defendant in fact recognized the assignment and the joint control agreement and actually paid money to plaintiff in accordance, therewith. In the absence of any attack upon the assignment by defendant we feel bound, following the dictates of equitable policy and sound precedent, to recognize the assignment and treat it as valid and binding between the parties. Martin v. National Surety Co., supra; McKenzie v. Irving Trust Co., supra; In re Webber Motor Co., supra; Royal Indemnity Co. v. United States, supra; United Pacific Insurance Co. v. First National Bank of Oregon, supra. Accordingly, apart from any question concerning bankruptcy law, plaintiff’s right to the contract proceeds is, by virtue of the assignment, superior to that of the trustee.

We next consider the issues raised by the Bankruptcy Act, for the trustee in bankruptcy contends that, assuming the validity of the assignment, the transfer of funds to plaintiff thereunder constitutes a voidable preference under Section 60 of the Act, reading in pertinent part as follows:

A preference is a transfer, as defined hi this title, of any of the property of a debtor to or for the benefit of a creditor for or on accoimt of an antecedent debt, made or suffered by such debtor while insolvent and within four months before the filing by or against him of the petition initiating a proceeding under this title, the effect of which transfer will be to enable such creditor to obtain a greater percentage of his debt than some other creditor of the same class. [Emphasis supplied.] (11 U.S.C.§ 96(a)(1)).

The problem here is twofold: whether (a) $3,145.45 advanced by plaintiff to Andersson prior to the January 2, 1962, assignment and in anticipation of it (footnote 1, finding 14), and (b) $10,042.32 of the $15,497.29 offset by the Government for taxes, constitute debts antecedent to the assignment and within 4 months prior to bankruptcy, and are therefore voidable under the Bankruptcy Act.

As for tbe assignment in general, there is little merit in the trustee’s contention that it was made “on account of an antecedent debt.” The assignment was made contemporaneously with the award of the Baker Slide Job and was in fact a prerequisite to plaintiff’s acceptance of the financing arrangement. We agree with the conclusion of the District Court that the transfer in issue was effected for the very purpose of assisting the bankrupt and helping him to extricate himself from the financial difficulties which had beset him, not to defraud, hinder, or delay his creditors. On this point, a brief excerpt from the District 'Court opinion is relevant—

I can find nothing in the record to support the Trustee’s claim that this, or the other assignments for that matter, was without consideraton and therefore unenforceable. Whether I view this assignment as an outgrowth of the original application, or view it as a separate assignment by reason of the fact that the Baker Slide job was not contemplated at the time of the initial application, a valid consideration is obvious. The duties assumed by plaintiff under the Baker Slide job would supply a sufficient consideration. [222 F. Supp. at 251-2]

The contractor’s attempt to assign to plaintiff the $3,145.45 advanced prior to the assignment, however, was a transfer on account of a debt antecedent to the assignment and within 4 months of the then insolvent contractor’s bankruptcy, and was thus voidable by the trustee in bankruptcy as a preference to plaintiff over other creditors. The assignment cannot relate back to embrace advances made by plaintiff in anticipation of the assignment, even though it was imminent and the premature payments were made to permit the contractor to proceed with the work without delay.

In general, an assignment made as collateral security for a debt gives the assignee an interest in the assigned chose commensurate only with the amount of debt or liability secured. Plaintiff’s security on the Baker Slide Job assignment extended only to amounts advanced by it to Andersson for subsequent contract performance, and did not cover contract receipts in excess of post-assignment contract disbursements. The Joint Control Account was charged a total of $31,919.87 on the Baker Slide Job, of which $24,786.82 was for direct expenses (material and payroll) and the balance for indirect expenses allocated to the contract (overhead, taxes, equipment payments), all segregated in finding 14. Thus, the assignment secured plaintiff to the maximum extent of $28,774.42 of these costs ($31,919.87 less $3,145.45 advanced prior to the assignment as stated above). This $28,-774.43 is to be reduced by $18,291.04, the contract payment already remitted to plaintiff by the Government on January 24,1962, leaving a net unreimbursed cost due plaintiff of $10,291.04. Converting this into arithmetical terms, of the $10,956.46 remaining in the Government’s possession as the balance due for performance of the Baker Slide Job, plaintiff is entitled to $10,291.04, and the trustee to $665.42.

The trustee in bankruptcy argues additionally that any balances in the Government’s possession due plaintiff under the assignment should be further reduced by $10,040.32, being that portion of $15,497.29 offset by the Government for taxes allocable to the earlier bonded contracts which plaintiff was bound to pay in the absence of the offset. The trustee’s reasoning is that, since Andersson’s performance of the Baker Slide Job created the fund upon which the tax offset could operate, and the offset tax claims were antecedent to the assignment, plaintiff is not entitled to at least $10,040.32 of the stakeheld funds because the withholding relieved it of liability for taxes just as clearly as if payment had been made to it. Aside from the fact that the trustee has failed to pinpoint the source of plaintiff’s liability to pay the taxes on the bonded jobs (i.e., does it derive from the bonds, the joint control agreement, or the assignment ?), it seems beyond question that the assignment was given to plaintiff for a present consideration, namely, debts in futuro under the Baker Slide Job, and that any balance of Baker Slide contract payments held by the Government is charged with a lien in the as-signee’s favor to the extent of the assignee’s advances made to the contractor to perform that contract.

Accordingly, we find that plaintiff is entitled to recover $10,291.04 of the Baker Slide Job funds still in the possession of the United States, and the third-party claimant is entitled to the remaining $665.42. Judgment is entered to that effect.

FINDINGS OF FACT

The court, having considered the evidence, the report of Trial Commissioner C. Murray Bernhardt, and the briefs of counsel, makes findings of fact as follows:

1. At all relevant times plaintiff (hereinafter sometimes referred to as United Pacific) was, and now is, a corporation organized and existing under and by virtue of the laws of the State of Washington having its principal place of business in the State of Washington. It is qualified to do business as a surety in the State of Oregon, and is in the general insurance business.

2. Prior to March 6,1962, Nils Sigurd Andersson was engaged in the road contracting business and on March 6,1962, he was adjudicated a bankrupt in the United States District Court for the District of Oregon. Bernard B. Cantor was appointed receiver of his estate on March 7, 1962; he qualified as trustee in bankruptcy on April 6, 1962, and remained such until August 21, 1963, when his resignation became effective and William H. Kennedy was duly elected trustee. Mr. Kennedy was duly qualified and is now acting as such trustee.

3. Prior to June 28,1961, the plaintiff issued its performance and payment bonds in stated amounts naming the United States as obligee and the contractor as principal, covering four Federal, state, and municipality public roads contracts. These jobs were successfully completed, but numerous bills were left unpaid by the contractor. In August 1961, pursuant to a Joint Control Agreement of June 28, 1961, between plaintiff and the contractor, a joint control account was established in the First National Bank of Oregon, Portland, Oregon, in order to receive accounts payable on this and other contracts, and to apply these funds to the payment of outstanding bills.

4. As of June 28,1961, and at all times thereafter the contractor was insolvent and plaintiff knew or had reasonable cause to believe that ho was so insolvent.

5. On December 16, 1961, the defendant, through the Bureau of Public Hoads of the Department of Commerce, issued to Andersson Purchase Order No. K8-672-62, Project No. BLM 612-A, for the removal of a slide occurring on a road under the Bureau’s jurisdiction. The project, which was fully performed by Andersson, was known as the Baker Slide job. The purchase order contained no requirement for payment or performance bonds, nor were such bonds issued. Accordingly, plaintiff was not Andersson’s surety with respect to the job.

6. On December 21, 1961, the contractor advised plaintiff by telephone of the issuance to him of a purchase order covering the Baker Slide job. The contractor requested plaintiff to advance him money out of the joint control account to perform the job, and expressed his willingness to execute an assignment of the proceeds of the purchase order as security for the advances. In the justifiable (and realized) expectation that the Baker Slide job would produce a substantial profit for the contractor and would increase the balance in the joint control account, the plaintiff orally agreed to advance money to meet the payrolls on the job for the week ending December 22, 1961, if Andersson would execute the necessary assignment.

7. On December 26,1961, plaintiff discussed the foregoing matter of financing the contractor with duly authorized representations of the Bureau of Public Hoads and the Project Engineer’s office (presumably representing the contracting officer), who instructed plaintiff they would require an assignment and a written direction of payment, which plaintiff agreed to provide. While the necessary papers were in preparation, the foregoing officials agreed to honor a letter from plaintiff requesting them to make no payments to Andersson under the job.

8. On December 27,1961, the plaintiff wrote the Bureau of Public Eoads confirming the conversation of the preceding day, and requesting that no payments be made to Andersson for the Baker Slide job pending the filing of an assignment.

9. On December 29, 1961, plaintiff wrote to Andersson confirming the oral agreement as to assignment of payments under the Baker Slide job, and enclosed an assignment for execution and return. In addition, the plaintiff requested Andersson to send to the Bureau of Public Eoads a letter worded in accordance with that set forth in finding 11, infra, directing that all payments “now due or hereafter to become due, payable to the undersigned” be sent care of plaintiff. The plaintiff impressed upon Andersson that if those matters were not attended to immediately it could advance no further funds. Plaintiff was anxious to file the assignment with the Bureau of Public Eoads prior to January 2 or 3, 1962, when Andersson would be due a partial payment of about $10,000 under the Baker Slide job.

10. Under date of January 2, 1962, Andersson executed the following assignment:

In consideration of the sum of $1.00 and other valuable consideration, the undersigned hereby sells, assigns and transfers unto United Pacific Insurance Company all monies now due, or which may hereafter become due the undersigned from the United States of America, Bureau of Public Eoads, under that certain purchase order No. B8-672-62. Project No. BLM 612-A, Baker Creek Eoad Slide Eemoval Work, dated on or about December 16, 1961, and the undersigned does hereby appoint A. D. Eeinhard, Portland Branch Claims Manager of said United Pacific Insurance Company, to act as his attorney to receive, endorse and collect checks payable to the order of the undersigned, drawn on the Treasurer of the United States, and to execute in the name and on behalf of the undersigned, all bonds, indemnities, applications, or other documents which may be required by law or regulation to secure the issuance of substitutes for such checks, and to give full discharge for same, granting to said attorney full power of substitution and revocation, hereby ratifying and confirming all that said attorney, or his substitute shall lawfully do or cause to be done by virtue hereof.

11. Also under date of January 2, 1962, Andersson executed the following letter on his own letterhead to the Bureau of Public Eoads:

The undersigned hereby authorizes and directs that all vouchers, warrants, checks or drafts or moneys now due or hereafter to become due, payable to the undersigned from the United States of America, Bureau of Public Eoads, under Work Order No. E-S-672-62, Project No. BLM612-A, Baker Creek Boad, Slide Bemoval Work, shall be sent in care of United Pacific Insurance Company, 627 Board of Trade Building, Portland, Oregon.

12. On January 3, 1962, the originals of the assignment and letter of direction set forth in findings 10 and 11 were personally served on the Bureau of Public Boads by plaintiff’s representative. As of that date the claim asserted against the Government in this action had not been allowed, nor had the amount due been ascertained, nor had a warrant for its payment been issued.

13. The Bureau of Public Boads treated the assignment and letter of direction (findings 10 and 11, supra) merely as a change of address, rather than an assignment and notice prescribed by the Assignment of Claims Act. Under date of January 24, 1962, the Bureau of Public Boads issued its check in the amount of $18,291.04 payable to “Sig Andersson, c/o United Pacific Insurance Co., 627 Board of Trade Bldg., Portland, Ore.” The check was mailed to and received by plaintiff, duly endorsed “Sig Andersson, by A. D. Beinhard [an official of plaintiff company], Attorney in Fact”, and deposited in the joint control account.

14. By the completion of the Baker Slide job on February 15, 1962, the plaintiff had charged the joint control account in the total sum of $31,919.87 allocated to that contract, as follows:

Materials -$12, 399.41
Payroll_ 12, 387.41
Admin. O. H. & Shop P/R_ 1, 586.58
Tases_ 3, 303. 83
Equipt. Payments, etc_ 2,242. 64
31,919. 87

Plaintiff thus received $13,628.83 less from the Bureau of Public Boads than it had charged against the joint control account for performance of the Baker Slide job. As of March 6, 1962, the date of Andersson’s bankruptcy, the defendant owed a balance of $26,453.75 on the contract, which sum has at all times remained in defendant’s possession credited to Andersson. The defendant has offset against the said $26,453.75 the sum of $15,497.29 admittedly due to the defendant for taxes owed by Andersson, leaving a balance of $10,956.46 still in defendant’s possession subject to no other claims except those asserted by plaintiff and the third-party claimant, which sum is that now in dispute between these parties. Of the $15,497.29 offset by the Government for taxes, $3,303.83 was properly chargeable to the Baker Slide job, and the balance was chargeable to Andersson’s other contract work, including $10,040.32 to the contracts referred to in finding 3.

15. Subsequent to the bankruptcy, proceedings were instituted in the United States District Court for the District of Oregon, Civil Action No. 62-145, in which both plaintiff and the trustee attempted to secure possession of the balance of $13,500.43, left in the aforementioned joint control account on the date the contractor was adjudicated bankrupt. The decision in this case is reported at United Pacific Insurance Company v. First National Bank of Oregon, 222 F. Supp. 243. Although the District Court found the assignment valid as between the parties despite a lack of compliance with the Assignment of Claims Act, it declined to adjudicate the issue pending in the Court of Claims litigation as a matter of comity, since it was pending in the Court of Claims first.

CONCLUSION OE LAW

Upon the foregoing findings of fact, which are made a part of the judgment herein, the court concludes as a matter of law that plaintiff is entitled to recover of and from the United States, and judgment is therefore entered for plaintiff in the amount of ten thousand two hundred ninety-one dollars and four cents ($10,291.04), and the third-party claimant is also entitled to recover the sum of six hundred sixty-five dollars and forty-two cents ($665.42) from the United States, and judgment is entered for the third-party claimant in that amount. 
      
       The court acknowledges the assistance it has derived from the opinion and findings of fact of Commissioner C. Murray Bernhardt. We have adopted his findings of fact and borrowed a substantial portion of his opinion.
     
      
       The account was designated by the First National Bank as the “Andersson-United Pacific Construction Account.”
     
      
       As to Baker Slide Job funds in the Joint Control Account — the check for $18,201.04 from the United States was deposited in the account, and a total of $24,786.82 was paid out for labor and materials bills incurred in construction of the project.
     
      
       As -will be seen, this $11,288.31 has been corrected by stipulation to $10,956.46.
     
      
       Bernard B. Cantor was appointed receiver of Andersson’s estate on March 7, 1962. He qualified as trustee in bankruptcy on April 6, 1962, and remained such until August 21, 1963, when his resignation became effective, william H. Kennedy, third-party claimant herein, was then duly elected trustee in bankruptcy and has since acted in such capacity.
     
      
       $3,145.45 of this payroll cost was disbursed by plaintiff prior to January 2, 1962, tbe date of tbe assignment.
     