Carr v. Leahy, 217 Mass. 438

Carr v. Leahy

217 Mass. 438 | Mass. | 1914

Hammond, J.

The rule upon which the decision of this case depends is well settled. It is stated by Story, J., in Duvall v. Craig, 2 Wheat. 45, 56, as follows: “A trustee, merely as such, is, in general, only suable in equity. But if he chooses to bind himself by a personal covenant, he is liable at law for a breach thereof in the same manner as any other person, although he describes himself as covenanting as trustee; for, in such case, the covenant binds him personally, and the addition of the words ‘as Trustee’ is but a matter of description to show the character in which he acts, for his own protection, and in no degree affects the rights or remedies of the other party. The authorities are very elaborate on this subject.”

“If a trustee contracting for the benefit of a trust wants to protect himself from individual liability on the contract, he must stipulate that he is not to be personally responsible, but that the other party is to look solely to the trust estate.” Woods, J., in Taylor v. Davis, 110 U. S. 330, 335. This doctrine has been recognized by this court. Hussey v. Arnold, 185 Mass. 202. Dunham v. Blood, 207 Mass. 512, 513. In Hussey v. Arnold, Knowlton, C. J., says (page 203): “Ordinarily, in the absence of special limitations, trustees bind themselves personally by their contracts with third persons. Actions at law upon such contracts must be brought against them, and judgments run against them personally.” See also the remarks of Holmes, J., in Odd Fellows Hall Association v. McAllister, 153 Mass. 292, at page 297.

In the present case there is no stipulation express or implied that the trustee shall not be personally liable, and there is therefore nothing to take it out of the general rule. He is personally held.

*441It is contended by Mm that even if he is held the liability extends only to the sum of $2,500. But we cannot agree with tMs contention. He guarantees “the payment of money specifically set forth in” the instrument to wMch the guaranty is annexed. The “money specifically set forth” is only one sum depending in amount upon the time of payment, — $2,500 if paid on or before July 1, 1911, and $4,840 if not so paid. Whenever paid it is only one sum, and there is to be only one payment. For tMs payment of whatever may be due at the time of payment the defendant is liable.

Exceptions overruled.