AUTOMOTRIZ DEL GOLFO DE CALIFORNIA DE v. RESNICK (1956)

Concerning respondent's contention that, aside from its claim of liability of appellants as joint adventurers, ‘there remains liability for the constructive fraud practiced by the corporate officers paying to Cowan $21,000 between March 17, 1953 and May 25, 1953’, there can be no doubt that a director may not use his position to secure for himself any advantage over other creditors in payment of his claim. But the act of appellants in paying Cowan the $21,000 gives rise to a cause of action in the trustee in bankruptcy who was heir to all claims of the bankrupt corporation for its moneys improperly diverted by its directors. Individual creditors have no such cause of action after bankruptcy intervenes. 3 Collier on Bankruptcy, 14th Ed., sec. 60.57, page 1018; 6 Am.Jur. sec. 1166, page 1251; Gochenour v. Cleveland Terminals Bldg. Co., 6 Cir., 118 F.2d 89, 93, 94; Klein v. Leader Electric Corp., D.C., 81 F.Supp. 624, 626; Lovell v. Latham & Co., D.C.Ala., 211 F. 374, 376.

The petition for rehearing is denied.

PER CURIAM.