78 Minn. 172 | Minn. | 1899
The St. Paul Plow Company sold a quantity of merchandise to a certain customer, received therefor several of the promissory notes of the customer, and thereafter, on December 15, 1895, sold and transferred to the plaintiff bank one of these notes for the sum of $2,333.33. A short time before the note fell due, plaintiff delivered the note to the Bank of Minnesota for collection, in order to aid the efforts of the plow company to pay the note, or substitute other security for it, and then surrender it and said other notes to said customer, and take back from him the goods sold to him, and sell these goods, or a part of them, to a second customer, and receive other security from him. After plaintiff’s note was received as aforesaid by the Bank of Minnesota, it delivered the note to the plow company; the latter surrendered it, with said other notes, to said customer, received from him therefor merchandise of the value of $12,000, sold a part of the same to said second customer for $2,700, and received his note for that amount. In the meantime the amount due plaintiff had been reduced to $2,000 by reason of a payment made to it by the plow company. Thereafter, on February 1, 1897, the plow company collected the full amount of thq latter note from the second customer.
On January 20,1897, the defendant Power was appointed general manager of the plow company, and he acted as such manager until March 11, 1897, when the plow company made an assignment in insolvency under the laws of this state for the benefit of its credit
On substantially this state of facts, plaintiff seeks to trace as a trust fund its note, or the proceeds thereof, into the certificate of deposit, and to have it held that the certificate of deposit was the property of plaintiff, and it demands judgment against Power for $2,000, the amount of the same, as damages for converting the same. The trial court held that plaintiffs note, or the proceeds thereof, could not be sufficiently traced as a trust fund into the certificate of deposit, and found for defendant Power. Plaintiff appeals from (he judgment.
We have some doubt as to the correctness of the holding of the learned trial court that such trust fund could not properly be traced into the certificate of deposit, but we do not deem it necessary to decide that question. There is, in our opinion, another reason why the judgment should be affirmed.
Power was a mere servant of the plow company. The court finds that one Dawson was its vice president, and engaged in the management of its affairs. Whether such an executive officer wrould be liable in such a case as this, we need not consider. The court finds
If, while the $2,000 was still on deposit, and Power, as such servant, had the custody of the certificate of deposit, plaintiff had brought its action against him alone to have a trust declared in its favor upon such certificate, we are clearly of the opinion that the action could not be maintained. It would be useless to bring such an action. The plow company might discharge Power the next day after the action was commenced. Thereafter his relations to the certificate of deposit would be the same as those of any other stranger, and the action must necessarily be abortive. If plaintiff could not maintain such an action against Power while the alleged trust fund was so on deposit, it cannot maintain this action now, after the trust fund has been distributed in payment of the debts of the plow company.
Judgment affirmed.
BUCK, 1., absent, took no part.