93 A. 526 | Conn. | 1915
The plaintiff in her complaint alleges that in January, 1909, she placed in the hands of one Morris certain property, and authorized and instructed him to sell it and hold the proceeds thereof as trustee for the benefit of herself, and to invest said proceeds in legal and proper investments as trustee aforesaid; that shortly thereafter Morris sold the property as authorized and instructed by her and received therefor about $25,000; that he deposited a portion of this money with the defendants and had numerous transactions with them, the details of which are unknown to her, except that they purported to be purchases and sales by said Morris, as trustee, through the agency of the defendants, of shares of the capital stock of sundry corporations, said transactions being of the character commonly called "purchases and sales on a margin"; and that a portion of the money held by Morris in trust for the plaintiff as aforesaid was used in said purchases, "but whether said transactions were actual purchases and sales of stock, or whether they were colorable and in fact mere gambling upon the rise and fall of the market price of stock, is to the plaintiff unknown." She further alleges that on these transactions the defendants charged Morris, as trustee, large commissions, which he paid to them from the moneys held by him in trust; that these transactions were wholly unknown to and unauthorized by her; and that, during the period covered by the transactions, the defendants knew that the moneys so deposited with them were moneys held by Morris as trustee, and knew or might have known, by reasonable and proper inquiry, that said trust was for the benefit of the plaintiff, and that the transactions were wholly unauthorized by her. As *228 the result of these transactions, it is alleged that there was lost from the trust estate the sum of $25,000.
Under an answer which left upon the plaintiff the burden of proving all the material allegations of the complaint (except that the purchases and sales of stock upon the usual commission charged to customers were admitted), and in which it was alleged that all the transactions between the defendants and Morris were actual purchases and sales, the plaintiff offered evidence from which the court could have found that in January, 1909, Morris represented to the plaintiff that if she would sell certain real estate and personal property which she then owned he could invest the proceeds for her so that they would bring in a larger income; that she authorized him to sell it for her, which was done, and the proceeds were paid to her by the purchasers; and that she indorsed the checks, which she received in payment, over to him to invest for her so that she might receive a larger income. These checks Morris deposited in a trust company to his own account. Soon after, he opened an account with the defendants by depositing his personal check on the trust company with them, telling them to open the account in his name as trustee, and the account was opened in the name "Charles E. Morris, Trustee." During the period covered by the transactions now in question, monthly accounts between themselves and "Charles E. Morris, Trustee," were rendered by the defendants to Morris, the account being balanced and closed on May 6th, 1910.
It is apparent that the plaintiff failed to prove the allegation that she placed the proceeds of the sale of her property in the hands of Morris to hold as her trustee and to invest as trustee for her benefit. The most that can properly be claimed upon the testimony is that he received these proceeds as her agent to invest *229 for her and in her name. There was no express trust, but a fiduciary relation between them was unquestionably created. He was bound to account to her for her property; and if the defendants, knowing of the relation, aided him in diverting her property from the purposes for which he held it, they would be accountable for it, if it could be traced to their possession.
There being no reply to the defendants' answer, the allegation therein that the transactions between the defendants and Morris were actual purchases and sales must be taken to be true. The transactions were therefore lawful ones for the defendants to be concerned in.Hatch v. Douglas,
The nonsuit was properly granted and the motion to set it aside properly overruled.
There is no error.
In this opinion the other judges concurred.