83 Minn. 394 | Minn. | 1901
In December, 1897, and January, 1898, the Thorpe Elevator Company of Minneapolis, hereinafter designated as the company, was engaged in buying grain at Ulen, this state, and the defendant herein was then its paying agent. It was his duty to pay the checks issued by the company’s buying agent, and whenever he needed money for that purpose he would draw drafts upon the company, which were paid. On December 27, 1897, Thore Alme was indebted to John T. Odegaard, of Minneapolis, in the sum of $401.55, upon a real-estate mortgage. This sum, in currency with nothing for exchange, was on the day named intrusted by Alme to defendant, to be sent by him to pay the mortgage. The latter placed the money in his safe by itself, and retained, as he claims, $385 of it for the purpose of paying grain checks issued by the company’s buying agent, and in place thereof he drew a draft for that amount on the company, dated December 30, 1897. At the same time he purchased a bank draft for $200, and in paying for it he used the remaining $16.55 so intrusted to him. These drafts he sent to the First National Bank of St. Paul for collection and credit, and each of them was paid and placed to his credit. On the same day he sent his check for $401.55 on the First National Bank of St. Paul to a bank in Minneapolis in which Odegaard, who was then absent from the state, kept his account, with the request that it be placed to his credit in payment of the mortgage. Before this check was presented the defendant’s account in the First National Bank of St. Paul was garnished by the plaintiff, and payment of the check was refused for this reason and returned to the defendant. Thereafter Alme intervened in this action,
There is and can be no question but that the defendant held the $401.55 as a trust fund, but the question on this appeal, as on the former one, is whether the evidence is sufficient to trace and identify the fund sought to be impressed with a trust as the avails of the fund wrongfully converted by the defendant. It was held, in effect, on the first appeal that if it were shown that the defendant used $385 of the money intrusted to him by the intervenor in paying the grain checks of the company, and that a'draft in place thereof was drawn on the company, and the avails of the draft deposited in the garnished bank, it would constitute a sufficient tracing of the fund, so as to impress the deposit with a trust in favor of the intervenor. The case, however, was reversed for the reason that the evidence was not sufficient to establish the facts so assumed. There was on the first trial, as stated in the court’s opinion on the former appeal, no evidence that the draft was in any way connected with the intervenor’s money, and in absence of such evidence the presumption was that the grain checks paid by the defendant were issued by himself, and that he used the intervenor’s money in his own business. But there was evidence on the second trial tending to show that the defendant never used a dollar of the trust money in his own business or for his own benefit; that he used $385 thereof in payment of the obligations of the company, and in place of it drew the draft on the company, and the proceeds thereof were deposited in the garnished bank;
The trial court, as a conclusion of law, ordered judgment against the garnishee for $401.55, and against the plaintiff for the interest on this sum from January 1, 1898, in favor of the intervenor. The plaintiff claims that it was error to charge it with such interest. The intervenor’s co'mplaint makes no- claim against the plaintiff for damages by reason of loss of interest on the $401.55 pending the litigation. Whether he can recover from the plaintiff for loss of interest on this money, in a proper action, on the ground that the plaintiff,, by wrongfully attaching money equitably belonging to him, thereby kept him out of the use of it during the litigation, we need not decide; for it is clear that such damages cannot be recovered in this proceeding. The intervenor is only a party to the garnishee proceedings for the purpose of asserting his claim to the fund garnished, and the sole issue tendered by his complaint of intervention is that he, and not the plaintiff, is entitled to the fund. O'r, in other words, this is. simply a contest between the intervenor, as claimant, and an attaching creditor, as to which one of them the garnishee must pay the money; hence there can
The case is therefore remanded, with directions to the district court to amend its conclusions of law and cause judgment to be entered as we have here indicated.
