Giddings v. Coleman

| Superior Court of New Hampshire | Dec 15, 1841

Woods, J.

Upon the state of facts disclosed by him, the trustee is most clearly chargeable for the sum of $23.71, which, not constituting any part of the accounts purporting to have been assigned to Jones and son, was, nevertheless, a sum fairly due from the trustee to Coleman, at the time of the service of the writ in this action.

In no point of view can the supposed assignment be regarded as embracing and transferring the aforesaid sum of $23.71. The items of account, which, in the aggregate, made up that sum, were not entered upon either of the books. which, together with their contents, purported to have been assigned to Jones and son ; and the assignments upon the day book and ledger were of “ the within day-book,” and of “ the within ledger, and the accounts within stated and mentioned,” and were in terms limited to those accounts thus “ stated and mentioned,” and clearly did not transfer the other items of account then existing in favor of Coleman against the trustee, but which were neither “stated” nor “mentioned” in the day-book or the ledger, upon which the assignments were written.

And the trustee is also chargeable, in the opinion of the court, for the other portions of the account of Coleman against him, and which purported to have been assigned to Jones and son. The trustee was indebted to Coleman, according to the charges contained in all his books of account, in the entire sum of 050.60; the accuracy and correctness of which are admitted by the trustee ; and he must be charged for that sum, unless the disclosure clearly and satisfactorily shows a valid assignment of some portion of the account before the service of the writ in this action. This is a case in which it is admitted by the trustee that the credits of the principal debtor have come to his possession ; and in such case the trustee is to be charged to the extent of such credits, unless by his disclosure, or upon other sufficient evidence, he clearly discharges himself. Wright vs. Foord, 5 N. H. Rep. 178.

And, in the opinion of the court, a trustee, under such circumstances, is to be charged, unless he discharges himself by a statement of facts known to himself, or by testimony derived from other sources of as high a character as that which is furnished by the affidavit of the trustee himself of facts of which he has personal knowledge. This is a controversy, in effect, between a creditor of Coleman, seeking to recover a just debt by process of law, and one claiming to be a creditor and a bona fide assignee of the debt, which is the subject of this controversy. In order, therefore, to maintain his claim against that of the plaintiffs, the assignee was bound not only to prove his claim to have been first in time, but, also, to have been well founded in legal right. It should have been shown that the assignments were not merely formal, but bona fide, and upon sufficient consideration.

It did not, however, appear by the disclosure, or upon any evidence of the character required, that Coleman was indebted in any manner to Jones and son, and consequently it did not appear that the assignments were made upon a sufficient consideration, or in fact upon any consideration whatever. The only evidence furnished by the disclosure was, that the trustee was informed by the agent of Jones and son that the assignments had been made to secure a debt due from Coleman to Jones and son, and that the instruments of assignment were exhibited to him. It did not appear even that the agent himself had any knowledge of the actual existence or of the bona fide character of the alleged indebtedness of Coleman to Jones and son. The truth of the fact of any such indebtedness was not evidenced by the disclosure of the trustee, nor by the affidavit of any one else claiming any knowledge of such fact. The fact of the assignments, being the fact upon which the discharge of the trustee was claimed, and upon which the assignees relied to protect the interest claimed to have been assigned to them, their bona fide character, as well as the soundness of the consideration upon which they were claimed to rest, should have been evidenced by proofs of as high a nature, and of legal force as great as is furnished by the disclosure of a trustee, in relation to facts of which he assumes to have personal knowledge. That character of proof, however, was not furnished in this case. Indeed, nothing having the character of evidence at all is furnished, of the facts essential to be made out, in order to establish the validity of the assignments. It was, at most, mere hearsay evidence, depending for its truth upon the veracity of the declarant in relation to specific facts, which in their nature are susceptible of being proved by witnesses who can speak from their own knowledge; and such evidence is uniformly held incompetent. Greenl. Ev. 112.

If the assignees of claims like those under consideration, would protect the. interest claimed by them, it is their duty, on proper notice, to furnish the requisite evidence to the trustee, to sustain the claim; otherwise the trustee, not possessing the requisite knowledge of the facts essential to his discharge, will be charged, and the claim of the assignees will be regarded as waived, or abandoned.

The affidavits of persons knowing the facts testified to by them, and having no interest to misrepresent, appended by the trustee to his disclosure, and made parcel of it, seem to us proper to be considered as furnishing evidence of the facts contained in them, of as high a character as is furnished by the disclosure of the trustee of the facts which the trustee assumes to know, and, therefore, proper to be considered by the court as such, in determining the question of the liability of the trustee. A proper disclosure is but the affidavit of the trustee, who ordinarily has no interest to misrepresent. No such evidence, however, was furnished in this case, of the facts alleged to exist, which, if proved, would have discharged the trustee.

This view of the case brings us to the result, that the trustee is chargeable for the whole amount in which he stood indebted to Coleman on account, as stated in the disclosure.

The question raised at the argument by the counsel for the plaintiff, as to the validity of the assignments, upon the ground of alleged legal fraud, becomes immaterial upon the view taken of the other questions raised upon the case. And if it were otherwise, it could not prevail, for the reasons contained in the opinion of the court, delivered by the Chief Justice, in the case of Boardman vs. Cushings at this term, ante 105.