75 Vt. 93 | Vt. | 1902
When this case was here in 1897,—70 Vt. 372,—it was held that the orators were not entitled to relief under the mechanic’s liens, because there was no finding that McDonald was authorized to charge the interest of Burton and Sowles with the repairs made by the orators. But the orators now claim that there is such a finding, and refer for it to the master’s last report, made in September, 1899, where it says that as far as the act of Burton and Sowles in agreeing to pay the orator’s debt as a part of the consideration of the chattel mortgage of June 30, 1881, was a ratification of McDonald’s action in creating the debt, they then and there ratified and confirmed such action.
But this is not a finding of the fact of ratification, but a submission of the question to the Court as matter of law. The Court had the same facts before it before, and it was for it to say whether they amounted to a ratification or not, and it said, in effect, that they did not. The case not being varied on this point by any additional findings,, the former decision is conclusive against relief under the mechanics’ liens.
The orators further claim an equitable lien on the fund in the hands of the receiver, because, the master having found that their industrial accessions to the building were necessary to fit it for a shirt-factory, and were specially 'mentioned in and covered by the insurance policies on which part of the fund was received, it would be inequitable to permit the defendants Burton and Sowles or any other creditors to hold the insurance money derived from such accessions.
It is said that the theory of equitable liens has its foundation in contracts, express or quasi, that deal with specific property, or are in some way related to it. But here is no such con
But in order for this, in any case of this general kind, either the aid of a Court of equity must be requisite to ‘the owner, so that he can be compelled to do equity, or there must be some element of fraud in the matter as a ground of equitable relief. 3 Pom. Eq. Jur. § 1241, and note; Williams v. Vanderbilt, 145 Ill. 238, 36 Am. St. Rep. 486, 493. It follows, therefore, there being no contract here giving a lien; the defendants not being actors; and no fraud being shown whereby Burton and Sowles induced the orators’ expenditures, — that an equitable lien cannot be decreed.
'It appeared when the case was here before, as it does now, that Burton and Sowles agreed with McDonald to pay his debt to the orators, and received a chattel mortgage from McDonald securing the amount to be paid; and it was then held that in equity the orators could avail themselves of the rights accruing to McDonald under that arrangement, and said that as the
In some of the States, the party beneficially interested in a contract may sue upon it at law in his own name. But in this State, as well as in England, an action at law can be maintained only by the party having the legal interest, that is, the party to whom the promise is made. The orators, therefore, cannot sue at law on this contract of assumption, but their only remedy is in equity, where their rights do not arise from the contract of assumption, but result from an application of the doctrine of subrogation, and McDonald having become a surety, the orators, as creditors of his principals, are entitled by subrogation to succeed to his rights against them at the time the bill was brought; and their rights are measured and limited by his rights, for they can stand only in his shoes. Keller v. Ashford, 133 U. S. 610; Crowell v. Hospital of St. Barnabas, 27 N. J. Eq. 650; Wyckoff v. Noyes, 36 N. J. Eq. 227, 231; Knapp v. Sturgis, 36 Vt. 721, 729; 3 Pom. Eq. § 1207.
It follows, therefore, that the orators can have no personal decree against Burton and Sowles for the amount of their debt, unless McDonald had a right to such a judgment when the bill was brought, — Crowell v. Currier, 27 N. J. Eq. 152, — arid that McDonald had such right is clear, although he had not
But as Burton and Sowles could, in an action by McDonald against them, set off any indebtedness of his to them, they can avail themselves here of such indebtedness by way of defense, for as the orators cannot recover in their own right, but only in McDonald’s right, they are subject to the defense of set-off. But it is not found that there is any such indebtedness. It is true that in the condition of the chattel mortgage, McDonald admits an indebtedness to them of $3,400. It is also true that this admission, with nothing to oppose it, is sufficient to establish the fact of such indebtedness, and therefore is prima facie evidence of it; but the master does not find the fact, and we are not at liberty to infer it. The rule is that when the amount of evidence sufficient to establish a fact is not fixed by law, it must be left to the jury or other trier to determine what conclusion is to be drawn from it. Thayer’s Prel. Treat. Ev. 333, 542, note 1. And the $6,500 mentioned in the condition of said mortgage, which it says Burton and Sowles “have obligated themselves to pay or assume” for McDonald, “or shall thereafter pay or assume” for him, stand in the same wiay, there being no finding of such obligation, payment, or assumption, except the assumption of the orators’ debt, which is included in the $6,500. As the case is presented, therefore, the orators are entitled to a decree for the amount of their debt. But as there is nothing in the case enabling us to say as matter of law that there is no indebtedness from McDonald to Burton and Sowles, and as the report discloses evidence tending to show that there is, we do not order a decree for the orators’ debt, lest injustice be done to the defendants, but send the case back in a way that
The orators are entitled to whatever advantage they can derive in McDonald’s right under the mortgage; and that would seem to be limited to the insurance money in the hands of the receiver, derived from the property covered thereby that was burned, as the rest of the property has been used up or is worthless. But there is no finding as to the amount of that money. An account of it, therefore, will have to be taken, if the orators’ debt is not extinguished by set-off.
The defendant Sowles makes many questions on his motions to recommit and to suppress, and his exceptions to the report. But most of them relate to points decided in his favor, and the others are not sustained.
Reversed and remanded, with mandate.