187 Pa. 366 | Pa. | 1898
Opinion by
Robert Wood, for some years carried on a stone and marblé business in Philadelphia; as early as February, 1892, he seems to have been embarrassed by debts of a large amount owing to a number of creditors who had furnished him granite and marble.- To one of these appellants, the Rockport Granite Company, to whom he was indebted in the sum of $13,500, he made at that time a written statement showing assets over $45,000 ; he continued to carry on business, however, up to July 12, 1893, when he confessed a judgment to William P. Bryson, in the sum of $32,211.72, as trustee for certain creditors, among them these appellants, whose claims amount to about $30,000. Two days after the date of the judgment, fi. fa., and attachment executions were issued thereon, but only $943.50 was realized by the creditors in a judgment confessed two days before this one. Nothing further seems to have been done by the trustee in the execution of his trust, for about nine months; the creditors became dissatisfied and, on April 16, 1894, took a rule on the trustee to show cause why he should not be removed and another appointed in his stead; this rule, the court, on May 25, following, discharged; then counsel' for creditors urged the trustee to file a bill against Wood to compel him to a discovery of his assets, which the trustee declined to do ; the counsel themselves filed the bill; Wood demurred, on the ground that Bryson alone was the proper plaintiff to such proceeding ; the court sustained the demurrer, and dismissed the
The conclusion of the master is wholly based on the absence of any positive evidence that the trustee was guilty of mala fides; but that is not the whole question; Whatever doubt there may be as to that, these facts are indisputable. The year before Wood failed, Bryson, as his bookkeeper, made a written statement, showing his principal’s assets to be $45,000, which in a subsequent letter in Bryson’s handwriting giving full details is confirmed as correct. Then Bryson accepts a judgment from Wood, as trustee for creditors, without consul
The personal relations between this trustee and the debtor at the date of the judgment, his relations with him and his family in the business afterwards, almost necessarily hampered him in the rigorous performance of his duty to the creditors. It is not necessary he should have had a pecuniary interest in the business of his employer or of his family; a strong sentiment of friendship may as effectively hold him back as interest. We think, on the admitted facts, the prayer for the removal of the trustee should have been granted; that he should have been removed, and another appointed.
Therefore, the decree dismissing the bill is reversed at costs of appellee, and it is directed that the record be remitted to the court below, that the proper order and decree may be made.