Root v. Ross

29 Vt. 488 | Vt. | 1857

The opinion of the court was delivered by

Redfield, Ch. J.

A question is made in this case whether the note secured by the mortgage was paid. This depends upon whether the money which went into the hands of George Ide had become the money of the plaintiff, or remained the money of the defendant.

It was given over as payment, and received as payment, and taking all the testimony together it is almost certain that it was the suggestion of the plaintiff’s attorney that induced the delivery to Ide, and although the defendant’s agent assented to it, there can be no doubt, we think, that the trust thereby created was to the plaintiff. And unless Ide can show some justification as against the orator, he would be liable to an action for the money, at the suit of the plaintiff.

There is no pretense from the testimony that Bartlett, the plaintiff’s attorney, objected to the defendant’s agent taking the note at the time, but the clearest evidence that he did not, but assented to it, in the fullest manner, and considered it paid at the time, and so did all present, the contract for costs being a payment, virtually, of such costs.

Ide testifies that Bartlett took the balance of ninety-seven cents, after he had notified him that he attached the sixty-two 'dollars, and then gave him the ninety-seven cents, saying he “ might as well have the whole.”

Bartlett says he told the 'defendant’s agent, the first time he came into the office afterwards, that he should not treat it as payment.

This shows very conclusively that up to this time Bartlett had treated it as payment, and the defendant’s agent also. And Bartlett is not certain whether this was the same day or some after day. And from George W. Cahoon’s testimony this point is left uncertain, but more probable, perhaps, from the testimony of this witness, that it was not the same day. For although the witness says he thinks Bartlett said to the defendant’s agent that day that he should not treat it as payment, he distinctly recollects that the agent came to the office on a subsequent day and Bartlett then gave him this notice, which he would not have done if he had done it before. And Bartlett evidently alludes to but one such notice. So that it was probably upon a subsequent day, but, at all events, it was a subsequent occasion.

We must then, we think, regard it as payment, unless the connivance in the attachment of the money will defeat the effect of the payment.

This is argued upon two grounds.

1. The defeating the liens upon the fund.

2. The aid which the defendant’s agent gave to the attachment.

In regard to the first objection to the effect of the defendant’s payment, it certainly could not defeat any lien which existed upon the money, either in favor of the attorney, or by way of assignment, if it had been properly notified, to have the money attached on the orator’s debts. Those liens might be still enforced against' the officer if they really existed in a perfected shape.

In regard to conniving at the attachment, we do not comprehend why it was any violation of duty on the part of the defendant’s agent.

He was certainly not bound to aid the officer, or to inform the creditor, but, as this was not illegal, he might aid the officer if he chose. We do not see why it is any worse in the defendant’s agent to aid in this attachment than in any other of the orator’s property he might know of^ or have in his possession. And it was never supposed that a third party was guilty of any wrong in aiding one to find and obtain his debtor’s property by attachment. It is not committing any legal wrong, certainly, upon a debtor to aid his creditor in attaching his property. It may be not altogether polite or courteous, and especially where one does not intend to have the creditor obtain such an advantage, but it is no fraud, and no wrong which the law will recognize or condemn.

Payment of debt and costs extinguishes the claim upon which the suit is predicated, and it is immaterial that it is while the suit is pending.

We have no occasion to pass upon the validity of Ide’s attachment. That question is in no sense involved in this suit.

Decree of chancellor affirmed.