Stowe v. Bowen , 99 Mass. 194 ( 1868 )

Colt, J.

The original action is for money had and received, founded upon that implied promise which the law raises upon proof of certain existing relations between the parties. It is sought to be maintained here by proof that the plaintiff in review had received the money of the defendant’s intestate which in equity he ought to refund.

The plaintiff in review is named as trustee jointly with Francis and Brown in a deed of trust which purports to have been .executed by the intestate, the validity of which seems to have been the question mainly considered at the trial. The statute of limitations was also relied on in defence. And these matters chiefly occupied the attention of the judge in his instructions to the jury. It is unnecessary to review the instructions actually given, because we think the present plaintiff entitled to the instruction requested, but not given, in relation to the actual receipt by him and possession of the money of the intestate.

As a general rule, cotrustees are responsible only for their own acts. They may, by agreement to that effect, or by cooperation with or connivance in the act of another in violation of the trust, become themselves in one sense responsible for the act of a cotrustee. In the discharge of their trust, they must join in giving receipts and discharges for money paid them; but such joint receipts are open to explanation, and those only into whose actual possession and control the money has come will be liab.e for its subsequent misapplication. It is said that this rule does not apply to executors whose concurrence in acts relating to the estate is not necessary. Hill on Trustees, 471, note. Kip v Deniston, 4 Johns. 23. Leigh v. Barry, 3 Atk. 584. Sadler v. Hobbs, 2 Bro. Ch. 117.

The nature of the action requires this defendant to prove that the plaintiff Stowe had actually received the money of his intestate. Stowe acted in the matter solely in his capacity as trustee under the deed, without knowledge of its alleged invalidity.

It appeared that he never took any of the trust funds into his actual custody. They were transferred from Brown to Francis in his presence, and he accepted the trust and advised and acted with them, but nothing more. It is conceded that he was not guilty of any fraud or concealment whatever in obtaining the transfer of the funds or the deed of trust. He cannot therefore be charged as cooperating with Brown in the alleged fraud. The jury found the deed void, either because Albee was insane, or because it was obtained by fraud practised by Brown. Upon either ground, it was therefore necessary for them to find, under proper instructions, that Stowe actually received the money, before their verdict could be against him. He cannot be placed in a worse position than if the deed had not been impeached for the fraud of Brown or the want of capacity in Albee.

The defendant in review now insists that the plaintiff Stowe has admitted the receipt of the money in his original answer in the case. The answer, which was joint, sets up many distinct grounds of defence, alleges that the only transaction whereby they had any money of the intestate arose under the deed of trust, and concludes with the averment that they do not owe the plaintiff anything. The question whether this answer, as it is and without amendment, is not sufficient to admit the defence, we do not discuss, for the objection, if it is valid, now coinés too late. It does not appear to have been made at the trial. The instructions asked for were not objected to or refused on that ground. If they had been, the plaintiff would have had an opportunity to amend his answer. The doctrine of waiver applies, and we think he cannot now be deprived of this ground of defence. Burke v. Savage, 13 Allen, 408. Jones v. Sisson, 6 Gray, 294. Hutchinson v. Gurley, 8 Allen, 23. Gen. Sts. c. 146, § 30. Exceptions sustained.