Handley v. A. Pfister & Co.

39 Cal. 283 | Cal. | 1870

Wallace, J.,

delivered the opinion of the Court:

It appears that James Fitzgerald was justly indebted to several persons in divers sums of money, and, among the rest, to the plaintiff, who was, at the time, in his employ as a laborer.

Under these circumstances, and with the assent of these other creditors, he placed in the hands of the plaintiff certain wheat and barley, with instructions to sell it, apply its proceeds to the payment of these debts and return the overplus, if any, to Fitzgerald himself.

Handley, with the assent of these other creditors, having received the property under these instructions, caused it to be sold for cash by John Carter, but the sum realized was insufficient to discharge the indebtedness. A portion of the proceeds being yet in the hands of Carter, the appellant, who was creditor at large of Fitzgerald, attached it as the property of Fitzgerald, applicable to the payment of this debt.

Carter, subsequently having been sued by the respondent, brought the balance into the Court below, when Pfister & Co. being substituted as defendants on the record in his stead, the respondent recovered judgment.

The rights acquired by the appellants to the fund in question, through the levy of their writ of attachment, are precisely those which Fitzgerald, their debtor, had at the time of the levy. This was a right to the overplus remaining after the payment of these debts; but there was no overplus.

Ho question is made but that the respondent and those whom he represents, were bona fide creditors of Fitzgerald, with a right to receive their money, and both a right and duty on the part of Fitzgerald to pay them. The steps taken by him to provide the means for their payment, were such as .the law permitted him to pursue; and when he, with the assent of these other creditors, placed this property in the hands of the respondent, with instructions to sell it and pay himself and them out of the proceeds, the respondent and those he represents, obtained a lien upon it and its proceeds .superior to any which the appellants could acquire by the subsequent levy of their process thereon. The authority to Handley to sell and apply the proceeds to the payment of his own debt, was, in law, irrevocable by Fitzgerald, and would continue while the debt should subsist. And as having, with the assent of the other creditors associated with him, undertaken to apply these proceeds in part to the payment of these debts, the respondent became clothed with a power coupled with a trust, for the benefit of those others, and which he was not at liberty to relinquish until these debts should have become in some manner discharged. (Walsh v. Whitcomb, 2 Esp. 565; Goodwin v. Bowden, 54 Maine, 425.)

■ The case of Morss v. Stone (5 Barb. 516), cited by the counsel for the appellant, does not present any point illustrative of this. The question there involved, was whether the goods in the possession of Butcher, which he had undoubtedly received from the hands of Morss, had been purchased by him, or merely received to sell for account of Morss. H the former, then the creditor of Butcher might subject them to the payment of his debt; if the latter, he could not do so. There, it was not pretended that the bailor had made a delivery of goods to provide for the payment of his own debts, nor that the creditors had received or assented to a bailment, the purpose of which was to create a fund for their benefit.

The judgment is affirmed.