77 Minn. 59 | Minn. | 1899
From an order overruling a general demurrer to an amended complaint in this action, defendants appealed. The order was affirmed. 72 Minn. 232, 75 N. W. 220. Issues were then framed, and the case was tried by the court without a jury. On findings of fact and conclusions of law judgment was entered in plaintiff’s favor and against each of the defendants. The appeal is taken by the defendants other than Peabody.
Stated in their chronological order, the material dates and facts are as follows: The deed of assignment for the benefit of creditors, in which Peabody was named as assignee, bore date August 29, 1885. The assignee’s bond, on which Hale and Austrian were sureties, was filed in the clerk’s office for Ramsey county on September 9, 1885. The order of the court requiring creditors of the insolvents, Bristol & McArthur, to file their claims bore date.May 25,
1. Peabody converted tbe funds on January 2, 1892, — a few months prior to tbe expiration of tbe period of one year and six months mentioned in G. S. 1894, § 4509. Tbe claim was not presented to tbe probate court, and for this reason defendants’ counsel insist that it cannot now be enforced. But this claim did not become absolute or capable of liquidation within tbe one year and six months period. See Hantzch v. Massolt, 61 Minn. 361, 63 N. W.
2. It is contended that the sureties upon the bond were discharged from liability by the arrangement made between Peabody and the bank, of which we have spoken. There is nothing in this, as between the defendants and the plaintiff, who, as assignee, represents all of the creditors. The conduct of the bank may have been “reprehensible,” as urged by counsel, but constitutes no defense in the present action. What rights may exist as between these defendants and the bank, arising out of the transaction, or what may be the equities as between the bank and other creditors, are not now a subject for consideration.
3. The principal part of the argument of counsel for defendants is devoted to the contention that plaintiff's claim is barred by laches on the part of the creditors of the insolvents, Bristol & McArthur, and, for this reason, we have stated the dates of the various transactions quite circumstantially, as the same were found by the court.
Among its conclusions of law, the court found that the creditors had pot been guilty of laches in the matter of prosecuting the claim under the bond, and counsel for plaintiff insists that this must be set over among the findings of fact, and so treated; and that on'the record here, the sufficiency of the evidence to sustain the findings not being questioned, it is conclusive on the question of laches. But it is immaterial whether this be considered a finding of fact or a conclusion of law. The facts, as found with respect to the various steps taken from the time of the assignment of Bristol & McArthur, down to the day the creditors applied for the removal of Peabody, in March, 1897, are not conclusive that such creditors were guilty of laches, and the paragraph in question is merely a logical conclusion from the facts found.
The cause of action did not accrue until the conversion in January, 1892, and the action was instituted in less than six years thereafter. True it is that the creditors of the insolvents could have compelled an accounting and distribution of the estate by the assignee at any time prior to the making of an assignment by him, but they were not obliged to take the initiative. The general rule
4. The trial court was right when ordering judgment for interest upon the amount appropriated from the time of the conversion. Judd v. Dike, 30 Minn. 380, 15 N. W. 672; St. Paul Trust Co. v. Kittson, 62 Minn. 408, 65 N. W. 74.
Judgment affirmed.