The opinion
*597 Affirmed April 18, 1922.
On the Merits.
( 206 Pac. 299 .)
Affirmed.
For appellant there was a brief ov.er the name of Messrs. Cake S Cake, with an oral argument by Mr. L. A. Liljeqvist.
For respondent H. F. Bushong there was a brief over the name of Messrs. Johnstone, Gay & Hodges, with oral arguments by Mr. Hamilton Johnstone and Mr. C. M. Hodges.
For respondents J. A. Miller and E. H. Bauer there was a brief over the names of Mr. Gus C. Moser and Mr. Roy K. Terry.
McCOURT, J.
— The defendant Jacob Arenz and the defendant H. F. Bushong, as trustee in bankruptcy of the Arenz Construction Company, claimed the same debt from plaintiffs; the latter filed a complaint in the nature of a bill of interpleader herein, and paid the amount of the debt into court. The Circuit Court entered a decree in favor of defendant Bushong, and defendant Jacob Arenz appeals from that decree. No disputed question of law is presented by the appeal.
Defendant Jacob Arenz was named as payee in a non-negotiable note given by plaintiffs for $6,000, dated October 23, 1918, and due May 1, 1919. The note provided for interest at the rate of 8 per cent per annum from May 1, 1918; $270 had been credited upon the principal of the note.
*598 Defendant EL F. Bushong, as trustee in bankruptcy of the Arenz Construction Company, a corporation which had been adjudged a bankrupt, claimed that the note above mentioned, and the debt evidenced thereby, was an asset of the bankrupt estate represented by said trustee. Both defendant Jacob Arenz and the trustee in bankruptcy asserted the right to collect the note. Defendant Jacob Arenz instituted an action against plaintiffs to enforce payment thereof, whereupon plaintiffs commenced this suit, praying that proceedings in the aforesaid action be enjoined, and that Jacob Arenz and the trustee in bankruptcy each be required to interplead concerning their respective claims to the sum of $6,420.15, the amount of said note, which sum plaintiffs deposited with the clerk of the court, for the benefit of the party entitled thereto. In response to plaintiff’s bill of inter-pleader, the parties, by appropriate pleadings, framed issues and set forth their respective claims to the moneys so deposited; upon the issues thus made, a trial and hearing was had.
After hearing the evidence, the court found in substance that the Arenz Construction Company was a corporation engaged in the business of general contracting; that Jacob Arenz was the president of the corporation, and his son Theodore Arenz, the treasurer and manager thereof, and another son, George C. Arenz, was secretary of the corporation; that Theodore Arenz was authorized by a resolution of the board of directors to do everything pertaining to the general business of the corporation, and that he did it; that on July 25, 1917, plaintiffs entered into a contract with the City of Astoria for the improvement of Exchange Street therein; that prior to the consummation of said contract, the Arenz Construction *599 Company submitted offers as to the amount for which the corporation would perform a certain portion of the work necessary to make such improvement; that after plaintiffs obtained said contract, they offered to sublet a portion thereof to the Arenz Construction Company upon the terms and for the price previously submitted by it; that the Arenz Construction Company proposed to plaintiffs that they sublet said work to one E. A. Gerding at a lower price than the Arenz Construction Company had bid, and that the difference, amounting to between seven and eight thousand dollars, be paid to the said Arenz Construction Company upon the completion of said work, thereby permitting the Arenz Construction Company to make a profit in that amount, without any outlay of time or money; that said proposals were accepted by plaintiffs, and in pursuance thereof and while the work was in progress and before it was completed, at the request of Theodore Arenz, treasurer and manager of the Arenz Construction Company, plaintiffs, in evidence of their obligation thus incurred, executed and delivered to said Theodore Arenz one or more promissory notes for the sum of $6,000, payable about May 1, 1918, in which Jacob Arenz was named as payee; that on July 30, 1918, the Arenz Construction Company filed its voluntary petition in and was duly adjudged a bankrupt by the District Court of the United States for the District of Oregon; that the Arenz Construction Company did not include in its schedule of assets in bankruptcy the debt or obligation evidenced by the aforesaid note or notes given by plaintiffs to Jacob Arenz; that in November, 1917, the Arenz Construction Company was insolvent, and the said Theodore Arenz, in anticipation of the bankruptcy of the corporation, destroyed the note or notes *600 which had been given by plaintiffs to Jacob Arenz, and the matter was permitted to remain without any written evidence of the indebtedness until after the Arenz Construction Company obtained an order of discharge in bankruptcy on October 23, 1918; on that date, at the request of Theodore Arenz, plaintiffs executed and delivered to Jacob Arenz the note in question in this suit; that the said debt or obligation evidenced by the promissory note which is the subject of this suit and which was evidenced by the note or notes destroyed by Theodore Arenz, was an asset of the Arenz Construction Company, and should have been listed as an asset in its petition and schedules in voluntary bankruptcy, and the destruction of the original note or notes and the failure to list the debt or obligation in its schedules and petition in bankruptcy was done to conceal said asset and to hinder, delay and defraud the creditors of the Arenz Construction Company.
3. Based upon its findings, the court entered a decree declaring defendant H. F. Bushong, trustee in bankruptcy, entitled to the fund of $6,420.15, paid into court by the plaintiffs, and directed that the same be paid to him after the payment of plaintiffs’ costs and disbursements of the proceeding, and also $350 allowed plaintiffs as an attorney’s fee.
While much evidence, oral and written, was submitted upon trial, it admits of no conclusions other than those reached by the trial court, and no purpose would be served by reviewing that evidence here.
4. Defendant Jacob Arenz assigns as error the provisions of the decree allowing plaintiffs an attorney’s fee out of the fund deposited in court. The Circuit Court correctly decided that defendant Arenz had no interest in that fund, therefore he is not in a position *601 to complain of the allowance of an attorney’s fee to plaintiffs ont of the same.
The decree of the Circuit Court is affirmed.
Affirmed,
Harris, Bean and Brown, JJ., concur.