84 N.W. 479 | N.D. | 1900
Lead Opinion
In 1894 G. A. Grover was doing a general merchandise business at Horace, in Cass county, N. D. On December 19, 1894, he executed a deed of trust of all his property to one Albert E. Jones, for the benefit of his creditors. The deed was executed by Grover, as trustor, and Tones, as trustee, and the creditors of Grover, as beneficiaries. This same deed was before us in Mercantile Co. v. Grover, 7 N. D. 460, 75 N. W. Rep. 911, 41 L. R. A. 252. Pursuant to the deed, Jones took possession of the property, and proceeded with the execution of his trust. In February, 1897, the trustor brought an action against the trustee to compel an accounting, claiming that said trustee was converting the property to his own use, and not properly accounting for the same. Grover being subsequently adjudged a bankrupt, his trustee, H. D. Scott, was substituted as plaintiff. There was an answer in full denial of this claim. The trial resulted in a judgment against Jones for $1,000, and he appeals.
None of the testimony was brought upon the record. The trust deed was made a part of the complaint, and is before us. Appellant urges but one ground for reversal, and that is that the finding of fact does not warrant the conclusions of law. We think the point must be sustained. In the trust deed we find this provision: “The said party of the second part hereby accepts said trusts, and covenants with the said party of the first part, and with each of the parties of the third part, that he shall and will faithfully execute the several trusts hereby established: provided, however, that said party of the second part shall not be liable for errors or mistakes of judg
Rehearing
ON PETITION FOR REHEARING.
A petition for a rehearing in this case having been presented, it becomes necessary, by reason of the matters therein brought to our attention, to add to what we have already said. It is urged upon us that we have placed a wrong construction upon the findings of the trial court. We cannot so view it. The court found that Jones was short in his accounts’ as trustee in the sum of $2,492.89. It also found that the value of his services as such trustee was the sum of $1,492.89, leaving a net shortage of $1,000, for which judgment was entered. It necessarily follows that, except as to- this amount of shortage, the accounts of the trustee were correct. He had not otherwise been delinquent,- — there was no other “delinquency;” and when the court, in its findings skid, “Any delinquency arising being the result of accident, error, and misadventure in the conduct of the business,” the language necessarily referred to this particular shortage for which judgment was rendered. There was nothing else, to which it could refer. We are now informed that objection was made to the incorporation of this matter in the finding. It was argued before the trial court, and its incorporation was advisedly made. We are further informed by this application for a rehearing that counsel for respondent were well advised before the convening of this term of this court that appellant would insist upon’