62 N.H. 588 | N.H. | 1883
Lead Opinion
An order made at the trial term charging the trustee upon its disclosure for money collected upon the book accounts, and for the uncollected accounts and books of account held by assignment, and appointing a receiver, was confirmed by the decision in Mitchell v. Green,
The assignment was a pledge of the accounts to the trustee to secure its claim against the principal defendants, and the trustee was liable to be charged for their value after satisfying the indebtedness for which they were pledged. Boardman v. Cushing,
The trustee claims that the assignment of the accounts to the trustee was to hold them only until its debts should be paid, and that the books of account themselves were not "goods, chattels, rights, or credits of the principal defendants," in the trustee's hands, within the meaning of those terms, and with which the trustee could be charged. A trustee may be adjudged chargeable for any personal property, subject to mortgage, pledge, or other lien, and for any promissory note or other security for the payment of money, or any chose in action on which an execution cannot be levied, and if chargeable a receiver may be appointed. G. L., c. 249, ss. 27, 28; Fling v. Goodall,
Trustee charged.
CLARK, J., did not sit: the others concurred.
Since the foregoing opinion was given, at the June term, 1882, the plaintiffs, at the trial term, have made a motion that the trustee be charged for the value of the uncollected accounts on the defendants' books at the time of the service of the plaintiffs' writ, and upon this motion the following additional facts are found:
When the indebtedness to the trustee had been paid, while the motion to charge the trustee was pending at the trial term, September, 1880, and before any order had been made charging the trustee, in the first instance, and appointing a receiver, one of the defendants called on the trustee for the money collected and deposited there, and for the uncollected accounts and books, and requested that their clerk, who had been collecting the accounts, be directed to give up the books to them. The clerk was referred to the trustee's legal adviser, who, without a knowledge of all the facts or of any purpose of the defendants to secrete the books, suggested *591 that the trustee having been paid had no further claim upon the books, and upon his advice the clerk gave them up to the principal defendants. Immediately after his appointment, the receiver demanded the books, but was unable to obtain them for nearly two years, when they were delivered to him by the defendants. The defendants, on receiving the books, secreted them to prevent their going into the hands of the receiver. While they had them, they collected upon the accounts written in the books $2,683.88, and appropriated the larger part of it to their own use. Neither the trustee nor its counsel had any knowledge that the books were, or were to be, secreted. The trustee was charged $2,683.88, and excepted.
Addendum
When creditors pursue their claims by means of the trustee process, the relations of all the parties are necessarily equitable, and the rights and liabilities of the parties are determined on equitable principles. The trustee has been charged for the books of account, a receiver has been appointed, and by order of the court the books have been delivered to the receiver. For the money collected on the accounts contained in the books and deposited with the trustee after the satisfaction of its own claim, the trustee had already been charged. The delivery of the books to the principal defendants, after service of the plaintiff's writ upon the trustee, was on the advice of counsel, and with no intention of defrauding the plaintiff or other creditors of the defendants. The concealment of the books by the defendants, and their subsequent collection of accounts and appropriation of the money to their own use, were without the direction, authority, knowledge, or consent of the trustee, which was not chargeable for the amount of the uncollected accounts nor for money never in its possession, and with the collection of which it had nothing to do. If the delivery of the books to the principal defendants afforded them the means of collecting and appropriating the money, it was done in entire good faith, and without consenting to or even anticipating any fraud upon the plaintiff's by the defendants; and the trustee not being chargeable, at the time, for the amount of the uncollected accounts, it would be inequitable to charge it now for money never in its possession, and for the collection of which it has been in no fault. For the $2,683.88 collected by the defendants while the books were withheld from the receiver the trustee cannot be charged.
Exception sustained.
STANLEY, J., did not sit: the others concurred.