Moors v. Goddard

| Mass. | Jun 21, 1888

Devens, J.

While the question raised by the bill of exceptions, namely, whether the trustees are to be held has been argued before us and before the Superior Court between the plaintiffs and the claimant, it is really one between the plaintiffs and the trustees. A claimant is only concerned when it is ascertained that there are funds in the hands of the trustee originally belonging to the defendant, which, but for the assignment or other title which the plaintiff may have acquired, would be payable to him. An adverse claimant does not come into' court for the purpose of showing that there are no goods, effects, and credits of the defendant in the hands of the alleged trustee, which would, ordinarily, be to prove himself out of court, but for the purpose of showing himself entitled to those funds to which, but for his claim, the plaintiff would be entitled. He can have no judgment in his own favor, except in the matter of costs, against either plaintiff, defendant, or trustee. Gifford v. Rockett, 119 Mass. 71" court="Mass." date_filed="1875-10-26" href="https://app.midpage.ai/document/gifford-v-rockett-6418282?utm_source=webapp" opinion_id="6418282">119 Mass. 71. Clark v. Gardner, 123 Mass. 358" court="Mass." date_filed="1877-11-08" href="https://app.midpage.ai/document/clark-v-gardner-6419045?utm_source=webapp" opinion_id="6419045">123 Mass. 358. It has, therefore, been held, that a statement of facts signed by the plaintiff and claimant only, and not on behalf of the trustees, who are necessary parties to the judgment, must be discharged. Massachusetts National Bank v. Bullock, 120 Mass. 86" court="Mass." date_filed="1876-03-11" href="https://app.midpage.ai/document/massachusetts-national-bank-v-bullock-6418461?utm_source=webapp" opinion_id="6418461">120 Mass. 86. Gifford v. Rockett, ubi supra. The first question in such case is, therefore, as between the plaintiff and the alleged trustee, whether the latter is primarily chargeable; and the second, whether the amount for which he is chargeable has been assigned or is due to any other party, who is entitled to present his claim therefor. In practice these questions undoubtedly are often tried at the same time, if not absolutely together, but they are essentially distinct.

In the case at bar, the only question passed upon by the court was whether the trustees were chargeable, and this in a controversy between the plaintiffs and the claimant. The presiding judge deemed that this was sufficient for the purpose of the case as presented to him, and held it to be unnecessary to consider the validity of the assignment for the claimant. The trustees had answered fully, and had no wish, apparently, to be heard, but were prepared to submit the case upon their general answer and replies to the interrogatories addressed to them. As the trustees were discharged, if it shall appear, notwithstanding any irregularity of the trial, that the plaintiffs, who are the excepting party, were not entitled, as between themselves and either of the other parties, to any of the rulings requested by them, no injustice will have been done. It might be said, parenthetically, that it would seem that the questions, upon the one hand, whether the trustees were not entitled to be discharged upon their whole answer, and upon the other, whether the trustees were not chargeable by reason of the fact that Mr. Stone deposited in the bank the draft belonging to the principal defendant as his own, might ' fairly have arisen at the hearing. But the bill of exceptions is not so framed as to present them, nor could we assume that it contains all the facts necessary to be stated if they were open for discussion. The questions presented by the bill of exceptions only are before us, and no other part of the case is brought here for revision. This has been often decided, and the reasons for such a decision are so obvious, that they do not require restatement. Richardson v. Curtis, 2 Gray, 497. Jones v. Sisson, 6 Gray, 288. Wall v. Provident Institution for Savings, 3 Allen, 96. Ames v. McCamber, 124 Mass. 85" court="Mass." date_filed="1878-02-28" href="https://app.midpage.ai/document/ames-v-mccamber-6419135?utm_source=webapp" opinion_id="6419135">124 Mass. 85.

The principal defendant had received a Treasury • draft, and had indorsed it to Mr. Stone, to be collected and devoted by him to certain purposes specified in a written agreement with the trustees. It was deposited by Mr. Stone in the Lincoln National Bank in Boston, and he was credited with the amount of it in his pass-book. While this draft was yet in the bank and unpaid, the plaintiffs’ writ was served on the alleged trustees. The validity of an attachment by trustee process must be determined by the state of facts existing at this time.

The rulings requested by the plaintiffs vary in form, but they were, in substance, that if, after the deposit of the draft by Mr. Stone, he could or would have received payment for the amount of it by a check drawn upon the bank for the amount of it, the trustees should be charged. The plaintiffs did not claim to .hold the trustees as such on account of their having received and deposited the draft to their own credit, or because they had a draft belonging to the plaintiffs for which, when collected, they were to account. It has often been held that choses in action, as notes, drafts, checks, etc., uncollected, which have been deposited with another to be thereafter collected, do not render him liable to be charged under the trustee process. Lupton v. Cutter, 8 Pick. 298. Lane v. Felt, 7 Gray, 491. Hancock v. Colyer, 99 Mass. 187" court="Mass." date_filed="1868-03-15" href="https://app.midpage.ai/document/hancock-v-colyer-6415317?utm_source=webapp" opinion_id="6415317">99 Mass. 187. The position of the plaintiffs was and is, that the property in the draft had passed, to the bank, that Mr. Stone was a creditor to the amount of it to the bank, and that if in fact he could have collected the money for it whenever he called for it, it is immaterial whether he could have enforced a payment for it from the bank. In reply to the plaintiffs’ requests, the court ruled that, except as to the alleged assignment for the claimant, on the validity of which it did not pass, “if Mr. Stone could have drawn against said deposit as of right, or if the bank or cashier would have paid his check against the deposit pursuant to any agreement implied by the course of dealing between the parties, or pursuant to any contract obligation, then he was to be charged as trustee; but refused to rule that he was to be charged as trustee if he would have been permitted to draw in the discretion of the bank, and the bank would have paid in its discretion, relying on his responsibility, the character of the paper deposited, or both or all the elements which might affect its discretion when not under obligation to pay.” The court further found as a fact, “that at the time of service Mr. Stone had not control of the credit entered upon his deposit-book on account of the draft in question, and could not check or draw upon it as of right,” but did not pass upon the question whether the bank would have paid a draft by said Stone against said deposit. It further ordered the trustees to be discharged.

This finding of facts was fully justified by the evidence, tending to show that, by the custom of the banks in Boston, checks and drafts were credited conditionally, subject to correction on non-payment; that such deposits were not subject to check of depositors until the check or draft was collected,' or sufficient time had elapsed for notice of non-payment in the course of business; that banks did, in certain cases, pay cheeks drawn immediately against deposits of checks or drafts, and that when they did so the responsibility of the customer, the responsibility of the drawer and drawee of the check, or character of the draft deposited, and various other elements, affected their decision. There was also evidence from other sources, that credit for the deposit of checks or drafts was absolute, and not conditional. So far as there was a conflict of evidence on this subject, it was a matter for the final decision of the presiding judge. With the usage of the bank with which Mr. Stone dealt, as it is found by the judge to have existed, he must be held to have been acquainted. The circumstance, that, by engaging his personal responsibility, Mr. Stone could have obtained the money for the draft, did not make him liable for the amount of it to the principal defendant, whose property it was when confided to him. Until the bank was under a legal obligation to pay him, there was no pecuniary legal obligation on his part to the principal defendant. No person is to be “ adjudged a trustee by reason of any money or other thing due from him to the defendant, unless it is at the time of service of the writ on him due absolutely and without depending on any contingency.” Pub. Sts. c. 183, § 34, cl. 4.

It is suggested that a deposit of the draft, for which credit was given by an entry on the books of the bank in the same manner as deposits of bank bills, must be held to have vacated the relation of debtor and creditor between the bank and trustee. If so, the trustee would certainly have had at once a right of action for the amount of the draft, which by the usage of the banks in regard to such deposits it is found he did not. The entry made, whether called a memorandum or by any other name, must be construed with reference to this usage, and did not make the bank liable to the depositor of the draft at all events. The plaintiff urges that the case of Hancock v. Colyer, 103 Mass. 396" court="Mass." date_filed="1869-11-15" href="https://app.midpage.ai/document/hancock-v-colyer-6415931?utm_source=webapp" opinion_id="6415931">103 Mass. 396, is practically decisive in his favor. We do not so' consider it. In that case the trustees had collected the amount of the check in money, had deposited it subject to their own order in the bank, and it was liable to be immediately drawn out by them, as of right, when the trustee process .was served. They could not have taken more complete possession of the money.

Exceptions overruled.