In Error to the Springfield Court of Ap- | "superintending control over the courts of peals of the State of Missouri. appeals by mandamus, prohibition, and certiAction by the Mergenthaler Linotype Com- orari," and provides (article 6, § 6, Amend. pany against W. B. Hayes and another. Judgment for plaintiff was reversed (202 S. W. 300), and plaintiff brings error. Dismissed. Mr. Bradford Butler, of New York City, for plaintiff in error. Messrs. Ernest A. Green, of St. Louis, Mo., and J. C. Sheppard, of Poplar Bluff, Mo., for defendants in error. *257 1884) that "The last previous rulings of the Supreme Court on any question of law or equity shall, in all cases, be controlling authority in said courts of appeals." In State ex rel. v. Ellison, 268 Mo. 225, 238, 186 S. W. 1075, 1078, a proceeding upon certiorari, the court declared: "We can undo what the Court of Appeals has done; * and we can send the record *Mr. Justice MCREYNOLDS delivered the back to them to be heard anew by them, opinion of the Court. * * but in the Kansas City Court of Appeals alone lies the jurisdiction to hear and to correctly and finally determine the case to which the instant proceeding is ancillary." See, also, State ex rel. v. Ellison, 269 Mo. 151, 190 S. W. 274; Schmohl v. Travelers' Ins. Co. (Mo.) 197 S. W. 60. In the present cause, the Supreme Court said: * "This is an original proceeding by certiorari. * It is urged by relator as his ground for quashal that the opinion of the Court of Appeals is in conflict with the case of United Shoe Machinery Co. v. Ramlose, 210 Mo. 631, 109 S. W. 567. * * * If this decision be op Dismissal of this writ is asked-first, because it does not run to a final judgment "in the highest court of the State in which a decision in the suit could be had"; second, because there was not properly drawn in question below "the validity of a treaty or statute of, or an authority exercised under the United States" or "the validity of a statute of, or an authority exercised under any State, on the ground of their being repugnant to the Constitution, treaties, or laws of the United States." Judicial Code, § 237, Act Sept. 6, 1916, c. 448, § 2, 39 Stat. 726 (Comp. St. § 1214); Coon v. Kennedy, 248 U. S. 457, 39 Sup. Ct. 146, 63 L. Ed. 358; Godchaux Co.posed to what we said or the conclusion which v. Estopinal, 251 U. S. 179, 40 Sup. Ct. 116, 64 L. Ed. -9 decided December 22, 1919. The trial court, proceeding without jury, gave judgment for rentals due the Linotype Company under written lease of a machine, etc. The Springfield Court of Appeals affirmed that action. 181 S. W. 1183. Thereupon the Supreme Court took jurisdiction by writ of certiorari, rendered an opinion, quashed the judgment of affirmance, and remanded the cause to the Court of Appeals for decision. 271 Mo. 475, 196 S. W. 1132. Following the Supreme Court's opinion, the Court of Appeals ordered the judgment of the trial court "reversed, annulled and for naught held and esteemed; that the said appellants be restored to all they have lost by reason of the said judgment; that the said appellants recover of the said respond ent costs and charges herein expended, and have execution therefor." A motion there for rehearing having been overruled, without more, this writ of error was sued out. The assignments of error here challenge the validity of sections 3037-3040 and section 3342, Revised Statutes of Missouri 1909, because in conflict with the Federal Constitution. This claim was first set up in the Court of Appeals upon the motion for rehearing. *258 *[1] The Missouri Constitution (article 6, § 8, Amend. of 1884) gives the Supreme Court we reached upon similar facts (if the facts are similar) in the Ramlose Case, we ought to quash the judgment of the Court of Appeals. This is the sole question to be determined." Under the Missouri practice and circumstances here disclosed, we think the judgment of the Springfield Court of Appeals was final within the meaning of section 237, Judicial Code. No suggestion is made that further review by the Supreme Court could be had, as matter of discretion or otherwise. [2] The only ground mentioned in the assignments of error upon which this writ could be sustained is conflict between specified sections of the Missouri statutes relating to transactions by foreign corporations and the Federal Constitution. But this point came too late, being first *advanced below on the motion for rehearing. Godchaux Co. v. Estopinal, supra. *259 [3] The claim that the lease contract was made in course of interstate commerce and therefore not subject to state statutes, was insufficient to challenge the validity of the latter; at most it but asserted a “title, right, privilege, or immunity" under the Federal Constitution which might afford basis for certiorari but constitutes no ground for writ of error from this Court. Dismissed. (251 U. S. 239) (40 Sup.Ct.) of New Orleans, La., and Mobile, Ala. AfterSCHALL et al. v. CAMORS et al. In re LE wards, and in the month of May, 1914, upon MORE'S ESTATE. In re CAR RIERE'S ESTATE. an involuntary petition in bankruptcy, the firm and the individual members thereof were (Argued November 17, 1919. Decided January adjudged bankrupts in the United States Dis5, 1920.) trict Court for the Eastern District of Louisiana, New Orleans Division, and the present respondents were elected and qualified as trustees of both the partnership and the individual estates. The present *petitioners, constituting the firm of Muller, Schall & Co., filed three proofs of claim, one against the partnership and one against each of the in *247 2. BANKRUPTCY 318(1), 320-UNLIQUIDAT-dividual partners, all based upon the same ED CLAIMS EX DELICTO NOT PROVABLE UN- Unliquidated claims arising ex delicto are not provable in bankruptcy under Bankruptcy Act, § 63 (Comp. St. § 9647), stipulating what debts may be proved, despite section 17, as amended by Act Cong. Feb. 5, 1903, c. 487, 8 5 (Comp. St. § 9601), though, if a tort-feasor obtains something of value, there may be a provable claim quasi ex contractu. 3. BANKRUPTCY PARTNERS AS WELL AS FIRM. transactions, which consisted of the purchase by claimants in the city of New York, through an agent of the bankrupt firm named Trippe, of certain bills of exchange and checks drawn by the firm upon London, Paris, and Antwerp, aggregating about $70,000, all of which were sold to petitioners for full value on the faith of certain fraudulent representations not necessary to be specified, and, at maturity, were presented for payment, dishonored and protested, and notice thereof given to the firm. At the time of these transactions Le More was in Europe and Carriere in New Orleans, and neither of them participated in the particular transactions, although both were cognizant of them and responsible for The particular the false representations. drafts and checks were not signed or indorsed by either partner, and neither profited from their sale except through his interest in the firm. The transactions occurred in the ordinary course of the firm's business, except that they were fraudulent, and the proceeds of the drafts and checks went to the credit of the firm and were used in the conduct of its business. Petitioners' claim against the partnership is based upon the drafts and checks as partnership obligations in contract, On Writ of Certiorari to the United States and also upon the damages sustained by reaCircuit Court of Appeals for the Fifth Circuit. son of the fraudulent representations. The In the matter of Albert Le More and Ed- claims against the individual estates of the ward E. Carriere, bankrupts, Frederic Cam- partners in terms demand only damages for ors and others, trustees. Petition to revise the false representations, but are relied upon and appeal by William Schall, Jr., and others as showing also, by inference, an individual to review an order disallowing their claims was dismissed, and the order affirmed on the In view of Bankruptcy Act, § 5 (Comp. St. 9589), as to partners, merely because proofs of individual claims for fraud against bankrupt partners established the responsibility of each partner for the fraud, so that they were liable in solido not only as partners, but individually, the unliquidated, unprovable claims in tort for the fraud were not provable both against the individual partners and against the firm as claims in quasi contract or equitable debt, the basis of such a liability being unjust enrichment, and the facts showing that no benefit accrued to the individuals as a result of the frauds beyond what accrued to the firm. appeal (250 Fed. 6, 162 C. C. A. 178), and claimants bring certiorari. Decree affirmed. Mr. R. S. Rounds, of New York City, for petitioners. Mr. Monte M. Lemann, of New Orleans, La., for respondents. *246 liability in quasi contact or equitable debt. The trustees petitioned the District Court that the latter claims should be expunged. After a hearing the referee in bankruptcy, for reasons expressed in an elaborate opinion, ordered that the claims against the individ *248 *ual estates should be "expunged and disallowed," and the rights of claimants to participate in dividends in such estates denied. Upon review, the District Court affirmed this *Mr. Justice PITNEY delivered the opinion order, and, upon appeal, its decree was afof the Court. firmed by the Circuit Court of Appeals, 250 Fed. 6, 162 C. C. A. 178. A writ of certiorari brings the case here. The transactions out of which this controversy arose took place in the years 1913 and 1914. At that time Le More and Carriere No question is made as to whether the refcarried on business as partners in the cities eree's order, in wholly expunging the claims For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes against the individual estates and denying In Dunbar v. Dunbar, 190 U. S. 340, 350, to petitioners all participation therein, went 23 Sup. Ct. 757, 761 (47 L. Ed. 1084), it was too far in view of the provision of section 5f said: of the Bankruptcy Act July 1, 1898, c. 541, 30 Stat. 544, 548 (Comp. St. § 9589), that"Should any surplus remain of the property of any partner after paying his individual debts, such surplus shall be added to the partnership assets and be applied to the payment of the partnership debts." "This paragraph b, however, adds nothing to the class of debts which might be proved un. der paragraph a of the same section. Its pur pose is to permit an unliquidated claim coming within the provisions of section 63a to be liquidated as the court should direct." But in Crawford v. Burke, 195 U. S. 176, 187, 25 Sup. Ct. 9, 49 L. Ed. 147, the question whether the effect of paragraph b was to cause an unliquidated claim, susceptible of liquidation, but not literally embraced by paragraph a, to be provable in bankruptcy, was regarded as still open. If the decision be sustained, petitioners nevertheless will be entitled, upon establishing their claim against the partnership, to participate as partnership creditors in any surplus that may remain of individual assets after payment of individual debts. What was asserted and overruled was a right to That clause b provides the procedure for double proof, establishing a separate and inliquidating claims provable under clause a dependent liability on the part of the indi- if not already liquidated, especially those vidual partners that would give to the claim-founded upon an open account or a contract ants, in addition to their participation in express or implied, is entirely clear, and has the partnership assets, a participation in the individual assets on equal terms with other individual creditors and in preference to other partnership creditors. The first and fundamental question is whether a claim for unliquidated damages, arising out of a pure tort which neither constitutes a breach of an express contract nor results in any unjust enrichment of the tortfeasor that may form the basis of an implied contract, is provable in bankruptcy. This question was passed upon by the referee and by the District Court; it has been most elaborately argued pro and con in this court; its general importance in the administration of the Bankruptcy Act warranted a review of *250 been recognized repeatedly in our decisions. F. L. Grant Shoe Co. v. Laird, 212 U. S. 445, 447, 448, 29 Sup. Ct. 332, 53 L. Ed. 591; Central Trust Co. v. Chicago Auditorium, 240 U. S. 581, 592, 36 Sup. Ct. 412, 60 L. Ed. 811, L. R. A. 1917B, 580. Has it the further effect of admitting all unliquidated claims, including those of tortious origin? [1] Historically, bankruptcy laws, both in England and in this country, have dealt primarily and particularly with the concerns of traders. Our earlier bankruptcy acts invariably have been regarded as excluding from consideration unliquidated claims arising purely ex delicto. Act of April 4, 1800, c. 19, 2 Stat. 19; Dusar v. Murgatroyd, 1 Wash. the case by certiorari; and hence it is *proper C. C. 13, 8 Fed. Cas. 140, No. 4,199; Act of that we dispose of it, without regard to wheth-August 19, 1841, c. 9, 5 Stat. 440; Doggett v. er a like result might follow, upon the par- Emerson, 1 Woodb. & M. 195, 7 Fed. Cas. ticular facts of the case, from a decision of $21, 826, No. 3,962; Act of March 2, 1867, any subordinate question. *249 Considering, therefore, the question stated: Among other definitions included in section 1 c. 176, §§ 11 and 19, 14 Stat. 517, 521, 525; Rev. Stat. U. S., §§ 5014, 5067; Black v. McClelland, 3 Fed. Cas. 504, 505, No. 1,462; In Re Schu of the Bankruptcy Act (Comp. St. § 9585) is chardt, 8 Ben. 585, 21 Fed. Cas. 739, 742, No. this: 12,483; In Re Boston & Fairhaven Iron "(11) 'Debt' shall include any debt, demand, Works (C. C.) 23 Fed. 880. or claim provable in bankruptcy." Sec. 63 (Comp. St. § 9647) runs as follows: "Debts Which may be Proved.-a Debts of the bankrupt may be proved and allowed against his estate which are (1) a fixed liability, as evidenced by a judgment or an instrument in writing, absolutely owing at the time of the filing of the petition against him, whether then payable or not, with any interest thereon which would have been recoverable at that date or with a rebate of interest upon such as were not then payable and did not bear interest; * (4) founded upon an open account, or upon a contract express or implied. * "b Unliquidated claims against the bankrupt may, pursuant to application to the court, be liquidated in such manner as it shall direct, and may thereafter be proved and allowed against the estate." [2] Can it be supposed that the present act was intended to depart so widely from the precedents as to include mere tort claims (40 Sup.Ct.) Fifty-Fifth Congress as a substitute for a Senate bill; after disagreeing votes of the two houses, it went to conference and as the re *251 sult of a conference *report became law. It is significant that section 63, defining "Debts Which may be Proved," remained unchanged from first to last, except for a slight and insignificant variance in clause (5) in the final print; the word "interests" having been substituted for "interest." House Rept. No. 1228, 54th Cong., 1st Sess., p. 39; House Rept. No. 65, 55th Cong., 2d Sess., p. 21; Senate Doc. No. 294, 55th Cong., 2d Sess., p. 22. Evidently the words of the section were carefully chosen; and the express mention of contractual obligations naturally excludes those arising from a mere tort. Since claims founded upon an open account or upon a contract, express or implied, often require to be liquidated, some provision for procedure evidently was called for. Clause b fulfills this function, and would have to receive a strained interpretation in order that it should include claims arising purely ex delicto. Such claims might easily have been mentioned if intended to be included. Upon every consideration we are clear that claims based upon a mere tort are not provable. Where the tortious act constitutes at the same time a breach of contract, a different question may be raised, with which we have no present concern; and where, by means of the tort, the tort-feasor obtains something of value for which an equivalent price ought to be paid, even if the tort as such be forgiven, there may be a provable claim quasi ex contractu. Crawford v. Burke, 195 U. S. 176, 187, 25 Sup. Ct. 9, 49 L. Ed. 147; Tindle v. Birkett, 205 U. S. 183, 186, 27 Sup. Ct. 493, 51 L. Ed. 762; Clarke v. Rogers, 183 Fed. 518, 521, 522, 106 C. C. A. 64. affirmed 228 U. S. 534, 543, 33 Sup. Ct. 587, 57 L. Ed. 953. Of course, sections 63 and 17 are to be read together. The reference in the latter section to "provable debts," defined in the former would be sufficient to show this. See Craw ford v. Burke, 195 U. S. 176, 193, 25 Sup. Ct. 9, 49 L. Ed. 147; Tindle v. Birkett, 205 U. S. 183, 186, 27 Sup. Ct. 493, 51 L. Ed. 762; Friend v. Talcott, 228 U. S. 27, 39, 33 Sup. Ct. 505, 57 L. Ed. 718; Clarke v. Rogers, 228 U. S. 534, 548, 33 Sup. Ct. 587, 57 L. Ed. 953. It is petitioners' contention that section 17, as amended in 1903 (Act of February 5, 1903, c. 487, 5, 32 Stat. 797, 798 [Comp. St. § *252 9601]), amounts to a legislative *construction admitting tort claims to proof. The section as it stood before and the nature of the amendment, are set forth in the margin. We are 1 Section as originally enacted (30 Stat. 550): "Sec. 17. Debts Not Affected by a Discharge.-a A discharge in bankruptcy shall release a bankrupt from all of his provable debts,. except such as (1) are due as a tax levied by the United States, the state, county, district, or municipality in which he resides; (2) are judgments in actions for frauds, or *253 referred to the committee's report (House Rept. No. 1698, 57th Cong., 1st Sess., pp. 3, 6) as indicating that by the law as it stood, in the opinion of the committee, claims created by fraud, but not reduced to judgment, were discharged; reference having been made to In re Rhutassel (D. C.) 96 Fed. 597, and In re Lewensohn (D. C.) 99 Fed. 73, affirmed 104 Fed. 1006. 44 C. C. A. 309, as contradictory decisions upon the point. But neither the report of the committee nor the language of the amendment gives the least suggestion of an intent to enlarge the description of provable claims as set forth in section 63. on the contrary, the purpose was to limit more *narrowly the effect of a discharge by enlarging the class of provable debts that were to be excepted from it. By the terms of the section, both before and after amendment, the scope of the exception was qualified by the fact that the discharge released the bankrupt only from "provable debts." And if the excepting clause as amended might seem to extend to some claims not otherwise provable, its own force must be deemed to be limited by referring to section 63 for the definition of provability. It is not admissible to give to this amendment, confessedly designed to restrict the scope of a discharge in bankruptcy, the effect of enlarging the class of provable claims. Aside from section 17 or the amendment thereof, it has been held by the federal courts generally that section 63 does not authorize the liquidation and proof of claims arising ex delicto and unaffected by contract express or implied. In re Hirschman (D. C.) 104 Fed. 69, 70, 71; In re Yates (D. C.) 114 Fed. 365, In re Crescent Lumber Co. (D. C.) 154 Fed. 724, 727; In re Southern Steel Co. (D. C.) 183 Fed. 498. 367; And that the amendment of section 17 does not enlarge the class of provable claims enu merated in section 63 has been recognized in several well-considered decisions of the feder ance, obtaining property by false pretenses or false representations, or for willful and malicious injuries to the person or property of another; (3) have not been duly scheduled in time for proof and allowbankrupt, unless such creditor had notice or actual knowledge of the proceedings in bankruptcy; or (4) were created by his fraud, embezzlement, misappropriation, or defalcation while acting as an offcer or in any fiduciary capacity." with the name of the creditor if known to the Amendment of 1903 (32 Stat. 798) inserted in the place of clause 2 the following: “(2) Are liabilities for obtaining property by false pretenses or false representations, or for willful and malicious injuries to the person or property of another, or for alimony due or to become due, or for maintenance or support of wife or child, or for seduction of an unmarried female, or for criminal conversation." NOTE. By a further amendment (Act of March 2, 1917, ch. 153, 39 Stat. 999) there was inserted after the word "female," instead of "or for criminal conversation," the following: "or for breach of promise of marriage accompanied by seduction, or for criminal conversation." we are dealing with a situation where by reason of insolvency it is not to be presumed that claims will be satisfied in full; and, as already pointed out, the effect of sustaining the right to double proof would be to give petitioners not only a right to share in the partnership assets on equal terms with other al courts which have held, upon satisfactory | less it would be conceded that a single satisgrounds, that pure tort claims are not prov- faction would discharge all of the claims; but able. In re United Button Co. (D. C.) 140 Fed. 495, 499, et seq., on appeal Brown v. United Button Co., 149 Fed. 48, 52, 53, 79 C. C. A. 70, 8 L. R. A. (N. S.) 961, 9 Ann. Cas. 445; In re New York Tunnel Co., 159 Fed. 688, 690, 86 C. C. A. 556. In Jackson v. Wauchula Mfg. Co., 230 Fed. 409, 411, 144 C. C. A. 551, and again in the present case (250 Fed. 7, 162 | partnership creditors, but a participation in C. C. A. 178), the Circuit Court of Appeals for the Fifth Circuit passed the question as unnecessary for the decision. There is an argument ab inconvenienti, based upon the supposed danger that if tort claims be held not provable they may be pre *254 *255 the individual assets on equal terms with other individual creditors and in preference to other partnership creditors. Section 5 of the Bankruptcy Act (30 Stat. 547, 548) estabof the individual and firm creditors.2 Hence lishes on a firm basis the respective equities the distinction between individual and firm debts is a matter of substance, and must depend upon the essential character of the transactions out of which they arise. And since in this case the tort was done in the course of the partnership business, for the benefit of the firm and without benefit to the partners as individuals, no legal or equitable be deemed to arise out of it, by waiver of the claim as against the individuals that might tort or otherwise, can displace the equities of other creditors, recognized in the Bankruptcy Act, and put petitioners in a position of equality with others who actually were creditors of the individual partners, and of nolds v. New York Trust Co., 188 Fed. 611, preference over other firm creditors. Rey619, 620, 110 C. C. A. 409, 39 L. R. A. (N. S.) ferred by failing debtors without redress *un- 391. Decree affirmed. 2 "Sec. 5. Partners. "d The trustee shall keep separate accounts of the partnership property and of the property belonging to the individual partners. "The net proceeds of the partnership property shall be appropriated to the payment of the partnership debts, and the net proceeds of the individual estate of each partner to the payment of his the property of any partner after paying his individual debts, such surplus shall be added to the partnership assets and be applied to the payment of the partnership debts. individual debts. Should any surplus remain of "g The court may permit the proof of the claim of the partnership estate against the individual estates, and vice versa, and may marshal the assets of the partnership estate and individual estates so as to prevent preferences and secure the equitable distribution of the property of the sev |