208 F. 730 | D. Mass. | 1913
Each petitioner had a contract with the Gilchrist Company. Shaw’s was in writing, dated July 2,1912. Fletcher’s was oral, hut its terms are evidenced, as is agreed, by an unsigned draft produced in evidence. It also dates from July 2, 1912. Under these contracts the parties had acted for several weeks preceding November 7. 1912, tlie date upon which receivers were appointed in the above-entitled case of the Gilchrist Company and its assets.
On November 7, 1912, the Gilchrist Company stood charged on its own books for amounts due die petitioners on account of sales made in its store of the petitioners’ property in accordance with the above agreements; the proceeds of said sales having been received by the company as in the agreements provided.
The petitioners ask for an accounting of the proceeds so received and for an order that the receivers turn over to them respectively tlie moneys found due them. Each petitioner claims that the company was holding the money due him as above on November 7, 1912, in a fiduciary capacity, and that he stands with regard to it, not in tlie position of an ordinary creditor, but entitled in equity to follow and recover the amount due him, out of the funds held by the receivers. In both cases the company intermingled the moneys received from the above sales with its own funds; but, if their contracts were such as to give the petitioners a specific interest in and an equitable charge upon those moneys, I see nothing to prevent them from tracing or identifying them sufficiently for the purpose of the recovery they seek. The moneys do not seem to me to have been so dealt with since their receipt as to make impossible a distinction between what the company received in exchange for the petitioners’ goods and its funds derived from other sources. The facts agreed identify specific funds as including specific amounts derived from sales under the agreements and show each such specific fund to have been at all times of greater amount than the amount of such proceeds now included in it.
The agreements called for monthly settlements and provided for deduction by the company of expenditures which it authorized the
The company’s liability to the petitioners thus rests upon its express agreement to pay them monthly the balance of a monthly accounting to be made upon agreed terms,. It can be regarded as liable to them otherwise than to any other contract creditor for an ascertained amount., only in case sufficient indication can be found, in the terms of the agreements, that the parties so intended.
The agreements contemplate no management or control by the company of anything beyond the proceeds of the sales, either in cash or credits, after the petitioners themselves had completed the sales. The entire management and control of the goods until they had been sold, of the persons employed to sell them, and of the making of the sales, remained wholly with the petitioners. The goods were not in the company’s hands to be sold and accounted for. No liability in connection with them was assumed by the company until the petitioners, through their own employes, had put the proceeds of sales into the company’s hands. There was no undertaking to account for and pay over “net profits as such,” as in Pratt v. Tuttle, 136 Mass. 233.
The company’s duty with regard to the proceeds so received was only that of accounting for them at the agreed times and on the agreed terms. It undertook nothing in regard to the safe-keeping of what it received, except what can be implied from the agreement to account, or from the express provision in both agreements that “all sales and cash are to be handled in the same way that all other sales and cash are handled in the company’s store.” It was therefore not only free to mingle these proceeds with its own funds instead of keeping them in a separate fund, but that it should so mingle them was expressly stipulated. The proceeds were to remain part of its own funds, subject only to the obligation of accounting for them at the agreed times. I do not see how it can be said to> have assumed an)^ duty of custodv or management regarding these proceeds, differing from that which it owed to all its creditors as 'to its own funds in general. Nothing in the nature of investment for the petitioners’ benefit can fairly be said to have been contemplated.
Each petitioner, it is true, made the company his agent to refund from the proceeds in its hands what it thought right to dissatisfied customers; but each agreed in advance to be bound by the company’s exercise of discretion in such cases, and a refund could have raised no question except as to the amount in fact allowed.
In the agreement with Shaw is contained a provision not found in that with Fletcher, viz.:
“Charges to customers * 15 * must be authorized and assumed by said company, and settlements of such charge accounts must be made with said Shaw in the regular monthly cash settlement.”
I am, on the whole, unable to find any implied trust established by the terms of the agreements, and must therefore rule that the petitions cannot be maintained.
Both petitions are dismissed.
