Smith v. Woodruff , 1 Hilt. 462 ( 1857 )

Beady, J.

Aaron Woodruff sold bis stock of goods to A. D, Gale for $1,000, and, by tbe agreement of sale, Gale was to take out tbe amount of bis debt against Woodruff, and pay the balaifcg; of tbe $1,000 to tbe other creditors of AVoodruff. Tbe defendant, bearing of tbe sale, bought tbe stock from Gale on similar terms, and partially, though not entirely, carried out tbe arrangement. He was to pay over the surplus, after payment or settlement of Gale’s claim, to tbe creditors, provided tbe creditors would accept that surplus and release Aaron Woodruff from all bis liabilities. It does not appear that Aaron imposed any conditions upon bis creditors in tbe agreement made with or directions given to Gale, but appropriated to them tbe surplus after tbe payment of Gale’s debt. Gale never acted upon that agreement or appropriation further than to sell tbe stock, which be bought from Aaron; and Aaron states that tbe defendant, when be bought, agreed to carry out tbe arrangement which be (Aaron) made with Gale.

Regarding tbe transaction between Aaron and the defendant as an assignment for tbe benefit of creditors, it would be void because of tbe conditions annexed. Grover v. Wakeman, 11 Wend. 187. Or, regarding it as an assignment for the benefit of creditors without conditions imposed, it would be equally void, because it is the appropriation of specified property, and not the whole of tbe debtor’s estate (Grover v. Wakeman, supra), aside from tbe doubt, which may well be entertained, whether a trust, eo nomine, for the benefit of creditors, can be created by parol. But there are other considerations which command attention. It is well settled, that if A deliver money to B, to be paid over to 0, the latter may recover it in an action for money had and received. Farmer v. Russel, 1 Bos. & Pul. 296; Weston v Barker, 12 John. 276; Tiernan v. Jackson, 5 Peters U. S. R. 598; Nelson v. Blight, 1 Johns, cases, 305. It is said that there must be some assent, express or implied, to hold the money thus 1 ad and received for the purposes designed (Williams v. Everett, 14 East. 582), to prevent accruing equities between the parlies, which might otherwise bo interposed, to frustrate the contemplated appropriation; but that question does not arise in this case. The defendant promised to apply the money as directed, fd did so as to all of the surplus except $200. It is true, that 3 directions of the assignor or debtor were general, and that the proportion which each creditor was to receive was not mentioned ; but that does not destroy the obligation or duty, because ■the law will presume the appropriation to have been equally among the creditors in the proportions which their respective demands bore to the surplus. The defendant was, by his agreement, liable to the creditors of Aaron for this proportion, and the debtor could not maintain against him an action to recover .the money so had and received to the use of the creditors. It had ceased to be his property, and the defendant had, by express promise, incurred a liability to the creditors. It will bo found, .on examination, that Weston v. Barker is analogous in the facts to those proved herein, while the principle applicable to both is the same. The debtor, not having any demand, right of action, or property, against, or in the hands of the defendant, the receiver acquired by his appointment no right to any property in the hands of the defendant or under his control, and the judgment of the court below was erroneous. The extent of the defendant’s liability is the proportion to which the plaintiff is entitled on the principles herein enunciated, and for which the defendant may be sued by the judgment-creditor at whose instance the receiver was appointed. It may be said with great propriety, that if it appeared that the defendant had settled with tbe creditors of Aaron on terms wbicb would leave a sum in bis bands belonging to Aaron, that to tbe amount thereof tbe receiver could recover. There is, however, no exposition of that kind herein.

Judgment reversed.