Le Grand Cannon v. Norton

| Vt. | Feb 15, 1842

The opinion of the court was delivered by

Williams, Ch. J.

The answers in this case were traversed. Where answers are not responsive to the bill, and where they set forth matters in avoidance of the claim, of the orator, they must be proved. The answer of one of the defendants is not evidence for the other. The orator has established, both by evidence as well as by the admissions in the answers, that the several notes and claims which it is the object of this suit to recover, were placed in the hands of the defendant, Norton, to secure or indemnify him for having signed a note with Gyrus Adams to one McClure; that all the remaining interest of Adams in the several notes, on the 25th day of December, 1830, was assigned to them, they being judgment creditors of Adams, of which notice was immediately given to the defendant, Norton ; that the note which the defendant, Norton, gave to McClure, was void, on account of usury, and was delivered up to Norton, to be cancelled, before commencing this bill. The duty of Norton, under these circumstances, was obvious. He held all the notes and claims as trustee for Adams in the first place, and therefore the orators, after the purpose for which they were originally placed in his hands was accomplished, were entitled to receive them as the as the assignees of Adams. If Norton gave them up to any one else, on receiving a bond of indemnity, he would remain liable to the orators, and must resort to his indemnity.

No evidence whatever is given, that these several claims, thus in the hands of Norton, were ever sold or assigned by Adams, for a valuable consideration, to the other defendant, Slason. Slason does not directly alledge any indebtedness from Adams to him, or any assignment to him, nor is there any proof to that effect. The answer of Norton, that Slason notified him, in the month of May, 1830, that Adams had agreed, that he, Slason, and Pond and Williams, should t 7i - . nave the benefit of the demands in his, Norton s, hands, and that in August, 1830, he agreed to deliver them to them with the assent of Adams, is not evidence for the other defendant, is not supported by any proof, and, moreover, is disproved by the testimony of two witnesses. The proceedings had before the commissioners, when Adams attempted to avail himself of the oath for poor debtors, in December, 1830, with the fact that no notice is taken of any claim of the defendant, Slason, in the assignment then made to the orators, corroborates the testimony of the witnesses, that the defendant, Norton, in his answer, must have been mistaken as to the time when he first learned that Slason, Pond or Williams, made any claim to the notes in question.

On the evidence, we think the orators have established their claim tp the demands originally placed in the hands of Norton, and that no other claim thereto is established, and, of course, are entitled to the relief asked for in their bill.

It is now insisted, by the defendants, that Williams and Pond should have been made parties to this bill. We see nothing in the case, however, which renders that necessary. It may well be doubted whether advantage can be taken of the want of proper parties when a case comes before this court, on appeal, particularly if it does not distinctly appear that it was insisted on before the chancellor. A bill is not to be dismissed, at the hearing, for want of parties, and, if not insisted on by demurrer, or plea, if it appears that a decree cannot be made without other parties, the case will only stand over to give the orators an opportunity to bring the other parties before the court, either by amendment, or supplemental bill, as the case may be. In this case the orators probably made Slason a party because the funds had been transferred to him. It does not now appear that either Pond or Williams have received any part of the notes originally placed with Norton, except that a sum of about one hundred dollars was paid to Pond by the direction of Slason. Nor, as we have already remarked, did either Slason, Pond or Williams show any legal claim to them. All the interest which they appear to have is, that the defendants now say that Pond and Williams were to be equally interested with Slason, and that Pond joined with Slason in the bond of indemnity to Norton against the claim of the J orators. Although this precluded the defendants from avail-themselves of the testimony of Williams, it did not furnish such evidence as rendered it necessary to bring either of them before the court in this case. It would not have been safe for the orators to have made them parties, without other evidence of their interest in the object of this suit than is now afforded. We are satisfied the decree of the chancellor was correct in holding the defendants responsible for the demands in their hands. It appears that the chancellor held the defendant, Norton, responsible for the whole amount of the claims originally placed in his hands, which had been collected or on which the money had been realized, and the defendant, Slason, responsible jointly with Norton for such sums only as he received, and it is now urged, on the part of the defendant, Norton, that a greater sum was received by the defendant, Slason, than he was ordered to pay by the chancellor. On examination of the evidence, we find this to be the case, and that the greater part of the proceeds of the notes, originally received by Norton, has been paid to Slason, and, inasmuch as Slason, on receiving the same of Norton, gave him a bond not only to indemnify him against the claim of McClure, but also against the claim of the orators, for which this bill was brought, we think he ought to be treated as jointly holden with Norton, to the orators, for the whole amount reported by the master. The decree of the chancellor should, therefore, be altered, and the defendants held accountable jointly and severally to the orators for the proceeds of the several demands which the defendant held as trustee for them, and which have been paid by him to Slason. The decree will be, .that the defendants pay the amount reported by the master, with interest and cost, and the additional cost of this appeal, in thirty days, or that execution issue therefor.

A mandate issued to the court of chancery to execute the decree.