Jordan v. Jordan , 1883 Me. LEXIS 94 ( 1883 )

AepletoN, C. J.

The defendant was employed by the trustees in effecting sales of their goods. He was to have commissions as he should sell and as the goods should be paid for. He was entitled to pay only after the payment of his principals. If they were never paid they lost their goods and the defendant lost his commissions. The trustees in no event lost their goods and in addition commissions on the sales of goods, for which no payment was ever made. The defendants’ claim for compensation accrued only upon and after their payment. Whether the goods he sold would ever be paid for was a matter of contingency. The defendants’ right to commissions depended on that contingency. " The contingency referred to in the statute,” observes TeNNEY, C. J., in Cutter v. Perkins, 47 Maine, 569, . . . " is a contingency which may prevent the principal from having any claim whatever, or right to call the trustee to account or settle with him.” Such is the contingency here.

The defendant may never have a claim enforceable against the trustee. This is not a debt due in the present and payable in the future, for there may never be a debt. The trustees cannot be charged for the sum of $300 referred to in the case.

On December 19, 1881, there was due the defendant from the trustee the sum of $54.82 for commissions on .sales when payments therefor had been made. The trustee on that day advised his clerk of such fact and directed him to make and transmit a check for that amount to the defendant. The clerk made the check that day and enclosed it in a letter, which was placed in the post office before the mail closed the next morning, which was 7.15 A. M.; the train left at 7.23 A. M.

On December 19, 1881 this writ was served on the trustee at 8 o’clock in the evening- by reading the same to him. The clerk was not notified of 'the service of the writ until after he had deposited the check in the post office and the mail had left. The check was duly presented and paid.

The question to be determined is whether the trustee is chargeable for the amount of this check. We think he is not. The clerk did his duty. The trustee is in no fault. He had a right to suppose his clerk would do as he was directed, as in fact he did. He was not legally bound after 8 o’clock in the evening or before 7 o’clock in the morning in the month of December to go to his clerk’s who lived a half mile or more from him to countermand his order and stop the transmission of his funds. He is guilty of no negligence. The trustee should be discharged for this amount. Lyon v Russell, and trustee, 72 Maine, 519; Spooner v. Rowland, 4 Allen, 485; Williams v. Kenney, 98 Mass. 142.

The trustee is chargeable only for $80.84, about which there is no dispute.

Trustee charged for ‡80.84 less his legal costs, and judgment for the plaintiff according to the terms of the report.

Barrows, Danforth, Virgin, Peters and SymqNds, JJ., concurred.