31 Minn. 99 | Minn. | 1883
Upon careful study and consideration of the proceedings on the trial below, and of the arguments of counsel here, we have reached the following conclusions in this case:
1. The nine “claims” mentioned in the contract, (Exhibit No. 1,) amounting to $22,843.39, were not to be retained by Easton for adjustment and collection under the provisions of the first part of the contract. 'They were to be tj-ansfeired to H. E. Wells, in trust for Mrs. Thompson, to secure the payment to her of $15,000.
2. The evidence in the case shows' (and there is nothing of any substantial importance to the contrary) that there was a legal delivery of the papers evidencing and transferring these nine claims by Easton to Wells, as trustee, and an acceptance of the delivery by the latter. The evidence on this point is the more significant and conclusive when we bear in mind (1) the unquestioned facts sworn to by Clark Thompson, that he “had the sole charge and management of the matter in behalf” of his wife, was personally cognizant of the transaction between her and the defendant, and acted as her “agent in everything relating to the fulfilment” of the contract; and (2) the fact stated in the brief of plaintiff’s counsel, that the railroad stock, in payment or security for the price of which the claims and securities mentioned in the contract were turned out, was purchased by Easton of Clark Thompson, though payment therefor was to be made to his wife. As respects the delivery of the papers evidencing and transferring the trust claims and securities to Wells, the undisputed facts clearly show that Easton put the papers into the control of Wells, with intent that they should pass to him, and that to this Wells assented. This was a good delivery of the papers, evidencing the claims and securities, as well as of the deeds of transfer made by Easton. 2 Greenl. Ev. § 297, and notes; Stevens v. Hatch, 6 Minn. 19, (64,) and cases cited.
4. There is nothing in the contract to prevent Wells from employing Easton as his agent to manage and collect the trust claims and securities, or from putting them in Easton’s hands for that purpose. Of course, this would not relieve Wells from personal responsibility for the proper execution of the trust. Any misconception on the part of Wells or Easton as to whether the trust claims and securities were to be held by Easton for adjustment and collection, under the early provisions of the contract, would be unimportant in this case, where the main question is not how the trust has been managed, but whether it was created by a transfer from Easton to Wells.
5. If, upon the evidence, it be left in some doubt whether the trustee is disposed to manage and execute the trust, that is a matter of no consequence as against Easton in this action. He has not only performed on his part in the creation of the. trust, but, holding the trust claims and securities merely as agent for the trustee, he has not only repeatedly offered to surrender them, but he brings them into-court to be disposed of as the court shall direct.
Without taking up the several positions of counsel in detail, it seems to us that these conclusions and considerations dispose of the merits of this case.
This is an appeal from an order denying defendant’s motion for a new trial. That, in our opinion, there was a mistrial will sufficiently appear from what we have said, but we imagine that, with reference to the views above expressed, a new trial will hardly be deemed advisable, unless upon a new state of evidence. But, at any rate, defendant is entitled to have the order denying a new trial reversed, and it is so ordered.
