211 Pa. 331 | Pa. | 1905
Opinion by
Two questions are raised by this appeal. The plaintiff in one couut of his statement of claim seeks to recover the sum of #33,797.02, with interest, less a credit of #8,728. 65, paid on account, against four defendants jointly. At the trial he failed to produce testimony to show a liability on the part of one of the defendants. The learned referee so found as a fact and as a conclusion of law. The appellant declared on, but failed to prove a joint liability. The probata did not sustain the allegata. This is the end of one branch of the case. All assignments of error relating thereto are overruled.
The second count of the declaration raises a different question. It is herein sought to recover #11,300, with interest, from George L. Hubbard, Elon H. Guyn, R. Alfred Zimmerman and George A. Cotton, as individuals. This action is predicated on the allegation that George L. Hubbard, as administrator of George IL Hubbard, deceased, had wrongfully paid to the said George A. Cotton, at the instance and with the consent of the other defendants, the amount claimed out of funds in his hands as administrator. The estate of George K. Hubbard, deceased, was not indebted to Cotton. The surviving partners of the firm of George K. Hubbard & Company may have been so indebted. It is contended that the administrator of the decedent had no right to appropriate the trust funds to the payment of firm debts. The learned referee has so found in the following language: “ The payments made by the administrator to the defendant, Cotton, in December, 1895, and April, 1896, were wrongful, and constituted a diversion of trust funds. When these payments were received by the defendant, Cotton, he knew that they were paid out of trust funds and he thereby made himself individually responsible for the return of these amounts to the personal representatives of George K. Hubbard.” The learned referee further discusses the question in his opinion, wherein it is said : “ It is plain that the payments of December 26, 1895 and April 22, 1896, were made in breach of trust. They were made by checks drawn on the administrator’s account. They were not made in discharge of any obligation
If the case had ended here it would have been properly decided. Exceptions were filed to the original report of the referee and argued before him. He then filed a supplemental report in which he modified his original findings, and by so doing has raised the only meritorious question for the consideration of this court. The modification made in the supplemental report can best be stated in the language of the referee: “ There is one qualification to be made. At the time that the December payment was made the fund on which the check was drawn was composed in part of George L. Hubbard’s interest in the money paid by the Order of Sparta, which interest was one third of $2,500, or $833.33, and when the payment in April, 1896, was made the fund on which the check was drawn was composed in part of George L. Hubbard’s interest in the money paid by the Massachusetts company, $2,723.61. So far as these two sums, therefore, are concerned, to wit: $833.33 and $2,723,61, George L. Hubbard had a right to do as he pleased with them. Any finding, therefore, against the defendants based upon this transaction must be subject to the deduction of the total of these two sums, namely $3,556.94.”
We do not agree with the referee in this respect. All of the testimony had been taken, the facts found, and conclusions of law stated, when the first report was made. There was no new or additional testimony before the referee when the reduction of the award was made in his supplemental report. We must, therefore, consider the facts as shown by the evidence at the time of the first report. In order to intelligently understand the matter in controversy it is necessary to briefly state some of the material facts.
At the time of the death of the decedent his estate consisted very largely of his interest in the firm of George K. Hubbard & Company, which said interest was appraised at $33,797.02, the total inventory filed being $47,062.03. He also had three
How about the second payment of $2,800 on April 22, 1896 ? The testimony shows that the administrator did have or should have had sufficient trust moneys in his bank account at that time to make this entire payment. It is true that in addition to the trust funds he deposited in his account the moneys received from the Order of Sparta and the Bay State Beneficial Association. Just what he did with these funds is uncertain. •His testimony is unsatisfactory as well as contradictory. At
The judgment is reversed, and it is directed that judgment be entered for the plaintiff in the court of common pleas for the amount awarded in the original report of the referee.