Emery v. Davis , 17 Me. 252 ( 1840 )

The opinion of the Court was drawn up by

Weston C. J.

'By the exceptions, either party may avail himself of the dockets, records, writs and executions, referred to. Upon examining the disclosure of the plaintiff, it appears that the carriage which occasioned the controversy, was in May or June, 1834, left in the hands of the plaintiff, who was summoned as trustee, under an agreement on his part to purchase it, but upon a condition precedent, with which ho had not complied, either when the trustee process was served upon him, or at the time of the disclosure. When he received the carriage of Pease, it was his property; for the title of the defendant, either for himself or the stage company, did not accrue, until October 2, 1834, the date of his bill of sale, as set forth in the disclosure. In the exceptions, in reciting a part of the disclosure, it is erroneously stated to have been the second of November, instead of October. The means of correction, however, are afforded by the original, which is a matter of record, and as such is referred to. But whether dated in November or October, does not affect the merits of the case.

The contract of sale between Pease and the plaintiff, not having been perfected, when the latter was summoned, he was then the trustee of the carriage, as the property of Pease, and it was liable to be attached in his hands by the trustee process, unless it had been previously assigned to Davis. Being notified of such an assignment, the plaintiff sets it forth in his disclosure. The validity of this assignment, the attaching creditor, or creditors, had a right to contest. Siat. 1821, c. 61. <§>7. They did so; and the defendant, the supposed assignee, was cited in, but did not appear, and his non-appearance was entered of record.

In such case the statute provides, that “ the assignment shall have no effect to defeat the plaintiff’s attachment.” The trustee must be charged as such, the alleged assignment notwithstanding. We think it results, that the supposed assignee is concluded by this adjudication. He was called in, that he might have opportunity to vindicate his title. Unless he is concluded, the trustee, who is a mere stakeholder, after being made liable by law to the attaching creditor, may be subjected to the hazard of being again charged at the suit of the assignee. We cannot give the statute a construction, which would lead to consequences, so manifestly unjust. By proceedings therefore, in which the defendant was cited as a party, and might have been heard as such, as between him and the plaintiff, his title to the carriage is barred. Nor could he have any just or legal right to receive or to retain payment for it of the plaintiff.

It is true, the case shows, that the defendant received payment, before a citation to appear was served upon him; but it was obtained under false pretences, made by his agent, for the civil consequences of which he is responsible. He cannot rightfully enjoy the fruits of the fraud of his agent, merely because it may never before have been brought home to his knowledge. But if the money was rightfully-received, the assignment, upon which his right was based, being now barred, the consideration has failed, and he has no right to retain it.

It is contended, that the defendant cannot be charged, first, because if he received the plaintiff’s money, it was as agent for the stage company, and not in his own right. Secondly, that he never received money or its equivalent. From the evidence reported, it would seem that the defendant took the responsibility of the business upon himself, and there does not appear to be any other tangible party, to whom the plaintiff can resort. If there were others, to whom the defendant might be held to account, it does not appear that he has done so. And if he has, he had notice of the claims of the attaching creditor, and of the impending and final liability of the plaintiff as trustee. As to payment, he admits it. He acknowledges the agency of Pease, and that whatever he received was the same, as if paid to himself. Pease, professing to act as the agent of the defendant, accepted a discharge from the plaintiff of his claim for horse keeping, and the negotiable note of a solvent man as payment; and this being adopted and assented to by the defendant is equivalent to the receipt of so much money by him. The Judge instructed the jury, that whether property in the carriage had been in the company, the defendant or Pease, the title of the plaintiff thereto could not be impeached, that the defendant therefore had a right to receive the money, and that the action could not be maintained. It was a decisive legal opinion! of the Court against the action, under any view of the evidence^ which could be taken. The exceptions are sustained, the verdict Set aside, and a new trial granted.