Rousseau v. . Call

85 S.E. 414 | N.C. | 1915

After stating the case: A perusal of the facts in evidence leads to the conclusion that this subscription list should properly be considered a trust fund, dedicated by the parties to the purposes of building the road, and that under recognized equitable principles it may be made available to creditors who have made advances and supplies to the trustee and manager engaged in the prosecution of the enterprise.

It is well established in this jurisdiction that a trust in personalty may be created by parol, and that no particular from of words is required for the purpose, and that the same will be recognized and enforced whenever it is manifest that a trust is intended, and the subjectmatter, the purpose, i. e., the disposition of the property, and the beneficiaries are designated with a reasonable degree of certainty (Witheringtonv. Herring, 140 N.C. 495; Riggs v. Swann, 59 N.C. 119; Perry on Trusts (6 Ed.), sec. 82 et seq.; 3 Pomeroy Eq. (176) Juris., secs. 1008, 1009, 1010; 39 Cyc., p. 56 et seq., and while a transfer of property is usually involved, this is not at all an essential requirement, and a trust in personalty may be and not infrequently is created when one directs that a specified debt due him or a part of it be retained or paid over by the debtor in trust for another or gives his own note for a like purpose — the instance more nearly presented here. Burris v. Brooks, 118 N.C. 789; Eaton v. Cook,25 N.J. Eq., p. 55; Baylies v. Payson, 87 Mass. 473; Fletcher v. Morey, 2 Story, 555; Legard v. Hodges, 1 Ves., Jr., 477. The statement being made always in reference to the position that when the trust is executory a valid consideration must be shown. 2 Perry on Trusts (6 Ed.), sec. 359.

This, then, in our opinion, being a trust fund for a designated purpose, it was clearly within the power of the court, exercising jurisdiction in law and equity, to appoint a receiver whenever it was sufficiently made to appear that such a course was necessary to the preservation of the fund or a due and proper execution of the trust. 5 Pomeroy Eq. Jur., sec. 89; Kerr on Receivers, pp. 20 and 21; Alderson on Receivers, sec. 474. True it is that the possession and control of a trustee will not be disturbed on light or insufficient grounds (2 Perry on Trusts, sec. 819), but the power being conceded or existent beyond question and the court, in the exercise of its jurisdiction, having entered judgment appointing plaintiff receiver, its judgment is not open to collateral attack, and, even if the order was improvidently made, its propriety is not open to question in this suit.

The position urged, that defendant was not notified in that action and, therefore, the decree is void as to him, is without merit. That was an action looking only to the preservation of the trust fund, and in which the creditors, the beneficiaries and the treasurer, the trustee of the fund, and also the general manager of the enterprise, were made parties.

So far as we can now see, the defendant was not interested in any issue there presented; assuredly he could not be considered a necessary party to that suit, and his presence or absence, therefore, does not present a jurisdictional question.

The plaintiff, then, having been properly appointed receiver by a court having jurisdiction of the cause and, as such, representing the rights of the treasurer, the trustee, and the creditors, the cestui que trust, having made demand required by the terms of the subscription, is entitled to recover the balance due, and we concur in the ruling of his Honor, that, on the facts in evidence, it was not open to defendant to show that one-half of his subscription was to be expended on the portion of the road lying south of the river.

It is held in this jurisdiction that when persons mutually subscribe a stated sum for a definite and lawful object, the subscription of (177) one may be regarded as a proper consideration for that of the other (University v. Borden, 132 N.C. pp. 477-491), and it is very generally recognized that when work has been done or expenditures made or debts incurred on the faith of such a subscription, it then becomes a binding obligation (Pipkin v. Robinson, 48 N.C. p. 152, and 37 Cyc., p. 486), and, when or to the extent that it has been expressed in writing, it comes under the principle obtaining in other written contracts, that it may not be changed or sensibly impaired by parol. Crane v. Library Assn., 29 N.J. L.; Burham v. Johnson, 15 Wis. 286; 37 Cyc., p. 504.

True, it is subject also to another position, equally well recognized, that when part of a contract only is in writing, the additional terms may be established by parol evidence; but this position is not allowed to prevail against the part which is written, for in such case, as said by the Chief Justice in Walker v. Venters, 148 N.C. 388, "the written word abides." In the present case the subscription contains in writing the provision that the signers "subscribe and bind ourselves to pay in cash, as called for by J. M. Hemphill, treasurer of the road fund, the amount set opposite our respective names." Here is express and definite stipulation as to character and time of payment, and it was not permissible to vary such a provision by the parol evidence offered in direct contradiction of its written terms. We are not inadvertent to the case of Kelly v. Oliver,113 N.C. 442, in which it was held competent for a defendant, sued on a subscription list, to show that this was not to become a binding obligation except on certain conditions that had not been complied with, a position which has been frequently approved and applied with us, as in Pratt v.Chaffin, 136 N.C. 350; Bowser v. Tarry, 156 N.C. 35; Garrison v.Machine Co., 159 N.C. 285, and other cases. That evidence was admitted to show that the written instrument or stipulation in question had never become the contract of the parties, and the ruling did not and was not intended to affect the principle that a written contract could not be changed or varied by parol.

The present case comes rather within the decision in Pipkin v. Robinson,48 N.C. 152.

We find no reversible error, and the judgment in plaintiff's favor is affirmed.

No error.

Cited: Boushall v. Stronach, 172 N.C. 275; Kelly v. McLamb, 182 N.C. 163;Taylor v. Everett, 188 N.C. 264; Supply Co. v. Whitehurst, 202 N.C. 415;James v. Dry Cleaning Co., 208 N.C. 414; Coral Gables, Inc., v.Ayres, 208 N.C. 428; Ins. Co. v. Morehead, 209 N.C. 175; RutherfordCollege v. Payne, 209 N.C. 797; Creech v. Creech, 222 N.C. 662; Stell v.Trust Co., 223 N.C. 554; Hall v. Shippers Express, 234 N.C. 41.