96 Vt. 124 | Vt. | 1922
This is a bill in chancery for an accounting by the defendant for money received from Harry Lowe- as trustee of Mrs. Harriet Bailey, Ella M. Bailey and Clara B. Lowe. The case was heard by the chancellor, facts were found and a decree rendered for the plaintiff Sparrow to recover from the defendant the sum of one thousand dollars, being the payment of a draft of that amount by the defendant to Henry Clews & Company, and the further sum of $457.40, being the balance due on the so-called ‘' trustee account, ’ ’ with interest on the same to August 15, 1921, in all amounting at that date to $4,049.08, and for the defendant against the other plaintiffs to recover its costs. The case comes here on the appeal of the defendant. As stated by the defendant only two questions are presented for review. The first relates to the application -of the two withdrawals above mentioned, and the second relates to the statute of limitations.
The account ram until May 8, 1901, when the balance of it, $2.75, was paid to Lowe by New York draft of that date. Lowe made a large number of deposits on the account, the last deposit being made on February 5, 1901. The chancellor was unable to find how much of this, after the first deposit, was in effect redeposits or how much of it originally belonged to any one of the three women, or how much of it was money loaned to Harry Lowe or used by him as stated in the findings. All the money, except the $2.75, was paid out by the bank on cheeks, orders, drafts, etc. (exhibits in the ease) drawn by Lowe.
Observing this distinction, let us see what was the aggregate amount of drafts or orders of the first class, drawn by Lowe and honored by the bank before September 6, 1895, the day the draft of $1,000 was sent to Henry Clews & Company, pursuant to the order signed by Lowe personally.
It appears that withdrawals were made on formal drafts or orders signed: ‘ ‘ Harry Lowe, Trustee, ’ ’ at and before September 6, 1895, amounting to $6,998.86.
Thus it is seen, that prior to and on the date of the draft to Henry Clews & Company all the trust money, including interest that may have accrued thereon and have been credited on the account, was withdrawn from the bank on drafts or orders signed, ‘ ‘ Harry Lowe, Trustee, ’ ’ and which the bank had the legal right to honor, and which the chancellor has allowed as proper charges against the account. This being so, the plaintiffs have no claim against the bank in connection with its paying the $1,000 to
The contract of deposit was with Lowe as trustee. The bank had no other course than to honor his orders when .properly
This proceeding is in equity, and the defendant is as innocent of any wrong as are the plaintiffs who put into the hands of Lowe the possibility and opportunity of doing the wrong complained of, and the solution we have here made does equal justice to both parties.
In the view we have taken of the case, it is unnecessary to consider the other questions argued.
Decree affirmed as to Clara D. Lowe and Ella M. Bmley, and as to Hiram L. Sparrow, administrator, it is reversed and remanded with direction that the bill be dismissed with costs to the defendant.