Kimball v. Le Pert ( 1861 )

Chapman, J.

On the 18th of May 1858, when Le Pert wrote the letter to Loring, Fiske & Co., the firm had been dissolved for several months, having gone into insolvency. But the letter related to a matter in which they had undertaken to act as trus tees for Le Pert and his creditors, and the funds left in their hands under that trust would not pass to their assignee in insolvency. He informed them that the debt of Parsons, Cutler & Co. had been otherwise provided for; and, as to the dividend which was due to that firm out of the trust property, he directs them to “ place the same to the credit of my note in your favor that was not included in said settlement.” The amount was $550.54, and the letter referred to a debt of $1192.85, which he had contracted for goods sold by Loring, Fiske & Co. to him after the funds were placed in their hands.

The letter above referred to having been received by Fiske, one of the persons to whom it was addressed, it became his duty to obey its instructions, and, after the drafts that had been left with the firm should be collected, to apply the portion that was orig-ally set apart for Parsons, Cutler & Co. towards the discharge of the debt indicated. It is immaterial that the notes, had, prior to that time, been transferred by Loring, Fiske & Co. to O. Ames & Sons, and by them to Fiske. The reasonable construction of the letter is, that it directs the appropriation of the money to pay that debt, in whose hands soever it may be. The fact that Fiske owned the notes facilitated his compliance with the request of the writer.

On the 26th of July following, Fiske, at the request of the creditors interested, placed the trust funds in the hands of Emerson, the trustee in this action, taking a receipt and agreement to himself personally. The receipt states the purpose for which the funds were deposited in the hands of Emerson. The agreement binds Emerson to pay the $550.54 to Fiske as soon as it should be collected, to be applied according to Le Pert’s direction in the letter of May 18. The money was thus appropriated by Fiske to the payment of his notes. The transaction was not of such a character as to require all the members of the firm to unite in it, or even to be informed in regard to it. The act of one would be the act of all,-in the mere collection and payment of money in performance of a trust which they had undertaken. And the transaction was valid as against subsequent attaching creditors; for it was a mere appropriation of the $550.54 towards the payment of a debt, in respect to which no fraud or other illegality is suggested. The claimant is therefore entitled to the money. Exceptions overruled