Kaley v. Abbot

14 N.H. 359 | Superior Court of New Hampshire | 1843

Gilchrist, J.

The Trustees, having contracted with Theodore Abbot, he supplied them, before the commencement of this suit, with locks amounting in value to $55.13. Upon the service of the writ he notified them that he was only an agent for Ephraim Abbot; and they then made a contract with Porter & Rolfe for the locks, which were supplied them by Theodore Abbot. The Trustees did not know of the agency, until this suit was commenced. In this state of facts, Ephraim Abbot had a claim upon the Trustees for the price of the locks, as soon as the notice was given them ; and he might have recovered the price in a suit against them, upon proof of his property.

The trustee process is regarded as an equitable action. Haven vs. Wentworth, 2 N. H. Rep. 93; Boardman vs. Cushing, 12 N. H. Rep. 114. Its object is to reach the property of the debtor in the hands of third persons. In applying this remedy, the facts must first be ascertained, and the ownership of the property determined. But it can never be appropriated to pay the debt of the plaintiff until it is shown to belong to the defendant. In this case, the property was not his. It belonged to Ephraim Abbot. The defendant was merely an agent. There has been no fraud in the case, and if the Trustees should be charged, the property of Ephraim Abbot would be taken to pay the debts of the defendant.

These remarks apply to the value of the locks purchased by Theodore Abbot before the suit was brought. There is no pretence that the Trustees are chargeable with the value of the articles bought of Porter & Rolfe. The latter might contract with any person, with Theodore Abbot or with Ephraim Abbot, without in any way affecting the liability of the Trustees.

Trustees discharged.