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Grey, V. C. The dispute requires a determination of the relationship of the defendant to the fund in his hands, and of the right of the receiver to claim it. The amount of the fund, who contributed it, in what sums, for what purpose, and under what circumstances, are all discovered by the defendant in his answer, or are indisputably shown in the proofs. The single question is, has the receiver a right to this money in the hands of the defendant because the stockholders proved claims for dues up to May,
*513 1896, when they liad actually paid dues to the association only up to December, 1895 ?The complainant contends that the defendant was by the association appointed its agent to receive these dues. The uncontradicted proof is that he was never so appointed; that he received the money in question as the voluntary depositary of certain stockholders of the association who resided in Camden, upon an express agreement that he should not pay it over to the association until directed so to do by the depositors, and that he never has been so directed.
This point is of the greatest importance, for if the defendant received this money as the agent of the association, the subsequent action of the stockholders in proving their claims on a basis of dues paid after December, 1895, might properly be related to the money in the hands of the defendant and be claimed to have been a final recognition of that money as the property of the association by the contributing stockholder and an appropriation of it to the payment of those dues.
Nothing in the proven claims filed with the receiver refers in any way to the money in the hands of the defendant or recognizes it as belonging to or under the control of the receiver. The claims simply show that each proving stockholder asserted that he paid more dues than he in fact did pay. This might have been good reason for reducing or rejecting the claims but cannot be held to have appropriated a deposited fund to support the asserted payment, which the undisputed evidence shows was never so appropriated. No stockholder is shown to have done any act whereby he selected or appropriated the particular moneys in the defendant’s hands in payment of the dues referred to in his proofs of claim. It is assumed by the complainant that the exhibition of a proof of claim by the stockholder, based upon the asserted payment of dues after December, 1895, must necessarily relate to those moneys which the stockholder had deposited with the defendant, without any evidence whatever that those moneys were ever directed to be paid to the association. The uncontradicted proof is that they were never so directed to be paid. The presumption that a mere proof of
*514 claim for more than was due was a selection and appropriation of a particular fund in no way referred to by the claimants is too violent to be sustained.The evidence shows that the defendant is a mere voluntary depositary. The stockholders who deposited these moneys are not made defendants in this bill, although all their names were upon the books of the association. They cannot be heard to defend their claim to the money in the defendant’s hands, nor can they be bound by any decree made in this case. This situation has not been the subject of criticism of these proceedings by the defendant, but under such circumstances the court will require, if it further proceeds with the cause in the absence of the persons who it is suggested are the real parties in interest, that a clear case be made that the fund attacked is actually assets which the receiver is entitled to have and which the defendant is bound to pay to him. In the face of the affirmative proof, substantially undenied, that the defendant did not receive the money in question as agent for the association, that it was never ordered to be paid to the association or to the receiver, the mere fact that proofs of claim have been made by the same stockholders who deposited the money with the defendant which alleged the payment of dues to a later period than they were actually paid, cannot, without other action, by the stockholders to select and appropriate this particular money as making those later payments, be construed to have been an appropriation of the money deposited with defendant.
The complainant has shown no right to the moneys in the hands of the defendant. The bill should be dismissed.
Document Info
Citation Numbers: 59 N.J. Eq. 510, 14 Dickinson 510, 45 A. 967, 1900 N.J. Ch. LEXIS 99
Judges: Grey
Filed Date: 3/30/1900
Precedential Status: Precedential
Modified Date: 11/11/2024