Fowles v. Treadwell , 24 Me. 377 ( 1844 )

The opinion of the Court was drawn up by

Whitman C. J.

By the agreed statement of facts, it appears, that the plaintiff, as deputy sheriff, had in his possession a writ of attachment against the defendants, and in favor of Messrs. Hovey & Pratt; that, by virtue thereof, he attached a quantity of lumber as the property of the defendants; but did not remove it from their possession; that, instead of doing so, he took a receipt, signed by them and others, acknowledging the attachment, and promising safely to keep the lumber, and deliver it to him in as good order as when received, and free from expense to him; that judgment was thereafter recovered in the action, and execution thereon issued against the defendants, and a demand seasonably made of them to restore the lumber, which, not being done, this action was commenced, founded on this breach of their contract.

The defence set up is, that, after the commencement of this suit, the defendants, under the statute of the United States, c. 9, of 1841, became certificated bankrupts; and it is contended, that this discharges them from liability on account of the breach of their said contract.

In reply to this, it is insisted, that, by the provisions of the statute referred to, the case of the defendants is excepted from its operation; that it comes within the description of those acting in a fiduciary capacity; that possession taken of goods attached, upon giving a receipt therefor, constitutes a trust; that it is like the cases of bailment in various other modes; and of the same class with that of public officers, executors, administrators and guardians, named in the same statute.

What shall constitute a “ fiduciary capacity” is not defined in the statute; and cases may undoubtedly occur, in which it may not be easy to determine when such capacity exists. If the defendants were not the original debtors, as well as defendants in this suit, but were strangers to the former suit, and had merely entered into an engagement for the safe custody and restoration of the property upon demand, perhaps we should find no difficulty in coming to the conclusion, that their undertaking was of a fiduciary character. Such receipters would have no right of property in the goods; they would be bound only as faithful servants to keep the goods safely, and have them forthcoming when called for. If they were to fail in doing either they might be liable in an action sounding in tort.

But the situation of the defendants was different. They were the general owners of the property attached; and the plaintiff, if he can be regarded as having actually attached it, left it undisturbed in their possession, and under their control. According to the authority cited by their counsel, (Gower v. Stevens, 19 Maine R. 92,) such an attachment was nugatory. It is there said, “ It has never been understood, that he (the officer) could, consistently with preservation of the lien, constitute the debtor his agent to keep the chattels attached.” And Woodman v. Trafton & al. 7 Greenl. 178; and Bruce v. Holden, 21 Pick. 187, are cited as “strong authorities to show, that an attachment is dissolved by leaving the property in the hands of the debtor.” There is an exception by our statute, in reference to this rule; but the ease before us does not come within it. The plaintiff, therefore, was divested of any special property in the lumber attached, if any he ever had; and could not maintain any action therefor, sounding in tort, against the defendants. His claim, therefore, if any he has against them, must be grounded upon the contract.

How far the contract between the plaintiff and defendants, under such circumstances, was obligatory in its origin, we are not called upon to inquire. The simple proposition stated for the determination of the Court is, whether the discharge in bankruptcy annulled the liability of the defendants.

The language of the bankrupt act, being the statute before cited, c. 9, of 1841, <§> 1, is, that all persons owing “debts” may take the benefit of the act, by declaring, among other things, that they are “ unable to meet their debts and engagements and in <§> 4, that, having conformed to the requirements of the statute, the bankrupt “ shall be entitled to a full discharge from all his debts;” and, in the same section, that his discharge and certificate, “ when duly obtained, shall in all courts of justice, be deemed a full and complete discharge of all the debts, contracts and other engagements of such bankrupt, which are proveable under this act.” And in § 5, “ that all creditors, whose debts are not due and payable until a future day, all annuitants, holders of bottomry and respondentia bonds, holders of policies of insurance, sureties, indorsers, bail, or other persons, having uncertain or contingent demands against, such bankrupt, shall be permitted to come in, and prove such debts or claims.”

The question remaining is, was this claim a “debt” from which the defendants were discharged, within ihe meaning of the clauses cited. They are all to be taken together; and it is often indispensable that we should look to every part of a statute in order to determine its import in reference to any particular point. By doing so it will become manifest that the word “ debts” used in the first and fourth sections, from which the bankrupt is to be discharged, has a more extended signification, than, from its ordinary literal import would seem to be implied; for in the latter part of the fourth section the bankrupt is to be discharged from all his debts, contracts and other engagements, which are proveable under the act; and the fifth section particularizes the different kinds of demands, which shall be proveable against the bankrupt. Uncertain and contingent demands, arc among those there named. The word “ debt,” then, which entitled a debtor to go into bankruptcy, included such demands. The demand in this case, however, could not at the time of the commencement of this action, and before the defendants went into bankruptcy, be considered as contingent; and the amount recoverable only was uncertain. The engagement of the defendants, under the circumstances of this case, was simply to keep a certain quantity of their own lumber, and deliver it to the plaintiff on demand; and this engagement had been broken; so that nothing remained but an ascertainment of the damages for the breach. It was in this view of the case, not materially distinguishable from the common case of a person, who may for value received, have engaged to deliver goods on demand. On the breach of such a contract, the value of the goods would be recoverable ; and if judgment were recovered therefor it would become a debt; and before judgment it would be a demand; and uncertain in amount, and within the purview of the bankrupt act.

The only species of action, which the plaintiff could maintain against the defendants, is assumpsit on the contract; and he has accordingly so declared. If he can recover, it will remain only to ascertain his damages, which, as the case stands, would be the value of the lumber receipted for. It was then a debt or demand within the purview of the statute. We are therefore brought to the conclusion, that the certificates of the defendants must bé admitted as a bar to the plaintiff’s claim.

Plaintiff nonsuit.