Wentworth v. Weymouth , 11 Me. 446 ( 1834 )

Mellen C. J.

On the 10th of March, 1832, Weymouth gave his promissory note to the plaintiff for $45,00, payable in January, 1833. The note was not negotiable. In September, 1832, Weymouth was summoned as trustee of Wentworth, and on his disclosure he was adjudged trustee, and has paid the plaintiff in the trustee process, on execution of $20,85 cents, and has tendered to the present plaintiff the. balance of the note and costs, being $33,25 cents, which sum has been brought into Court. No question has been made respecting the tender. The only inquiry is, whether the disclosure made by the defendant was a full one, and such as he ought to have made, in the circumstances in which he stood; or whether he was adjudged trustee because he did not disclose certain jacts in relation to the claim of Francis Hill to the sum mentioned in the note. In Herring v. Andrews, 5 Mass. 210, Parsons C. J. says, “ We do not consider that a stranger to the suit in which a trustee is examined, is concluded by the examination from proving that there were other facts within the knowledge of the trustee, which he did not disclose, or that there was collusion between him and the plaintiff or defendant in such suit.” If any facts were within the knowledge of the trustee and not disclosed, which, if they had been disclosed would have induced the court to discharge him, he cannot now avail himself of the judgment rendered in the trustee suit, as a defence to this action. We have before us no proof of collusion. The defendant in his disclosure says, “ I have been informed by Francis Hill that the said note is his property” — “ But he never shewed me any assignment in evidence of his propertynor does it appear that Hill had any interest whatever in the note, except from his own declaration ; or at least, that the defendant had any knowledge of the fact, except from his statement a short time prior to the disclosure. In Hawes & al. v. Langton, and trustees 8, Pick. 67, the court observe that “ extrinsic facts have sometimes been introduced by the voluntary annexation of the evidence of them to the answers of the trustee, he declaring upon oath, that he believes them to be true; but if the trustee should refuse to annex such evidence, we think there is no power in the court to compel him/' In the case before us there was no evidence in possession of the trustee which he could annex. It is urged that he should have disclosed all the facts which Hill told him prior to the disclosure; namely, that the oxen for which the note was given, belonged to Hill, and that Wentworth acted as his agent in the sale of them, though he did not disclose his agency, and that immediately after the sale, he delivered the note to Hill, who then objected to the manner in which it was drawn and requested to have the note changed for one negotiable and payable to himself. — Supposing all these facts had been disclosed, they are nothing but Hill’s declarations, not on oath, and the same, thus presented to the Court, would have availed nothing, unless the defendant had also sworn that he believed ike declarations were true, according to the case of Hawes & al. v. Langton, just cited. Now what evidence have we that the defendant Jcnew or believed those declarations to be true ? The case is totally silent on this head. The omission, therefore, of the defendant to disclose certain declarations of Hill, unsupported by any kind of evidence, and of the truth of which we have no evidence that the defendant could even swear to his belief, cannot in our opinion, defeat the defence predicated on the judgment in the trustee process and the satisfaction of it. The action cannot he maintained, and the plaintiff must he nonsuit.