Knapp v. Levanway ( 1855 )

The opinion of the court was delivered by

Bennett, J.

Adams, Wood & Co., underlet to the defendant a part of the work contemplated in their contract with the railroad company at the same rates, amount and terms of compensation as the railroad company were to pay them. After this the defendant and one C. C. Knapp, entered into a written contract, under date of the 9th May, 1849, the substance of which was, that they were to do the arch and bridge masonry for the culvert on section twelve for the prices which the company had agreed to pay Adams, Wood & Co., and the profit and loss to be equally shared between them. As between this defendant and C. C. Knapp, there can be little doubt that the twenty per cent which the company was to pay in stock for the work would be paid on the joint account of both; and the auditor finds that it was the intention of those parties that the work on the culvert should be accounted for between themselves at the prices specified in the contract between the railroad company and Adams, Wood & Co. But the question is, what was the contract as between the parties to this suit. The auditor finds that by the parol agreement, C. C. Knapp was released from his agreement, and that Henry Knapp, the plaintiff, took his place, and the defendant was to x’eceive all the payments and to account to the plaintiff at the same rates and prices which Adams, Wood & Co. were to receive from the railroad company, and the defendant was by the agreement to pay to the plaintiff his share in cash immediately upon the completion of the work. The contract, as found, between the parties to this suit is too explicit to admit of but one construction. The plaintiff was to have his moiety of the profits in cash; and as a consequexice, the defendant must retain the twenty per cent paid in railroad stock, as a part of his share of the profits.

There might have been special reasons, why this contract took the form it did. The plaintiff might have declined to take the place of his brother, C. C. Knapp, except upon the condition that his share should be cash; or the defendant might have had his reasons why he wished to retain the stock. But it is not the business of the court to inquire for reasons.

The judgment then, against the principal debtor is reversed, and judgment is rendered in this court against him for $268.27; the interest on it to be added from the 1st of October, 1849.

As to the trustee the judgment of the county court should be affirmed.

Strong, the supposed, trustee disclosed that he had not individually or as a member of the firm of Strong, Chamberlain & Co. any assets of the principal defendant in his hands, nor had he had individually, or as a member of said firm, at any time, any assets of the principal defendant, and the commissioner reports that such he finds to be the fact.

It seems the trustee, when inquired of, if the firm of Strong & Chamberlain were not indebted to the principal defendant, declined to answer the inqniry, upon the ground that he was summoned as trustee individually and not as a member of any firm. It has been settled in this state that if an individual is summoned as a trustee, the trustee process can only operate as an attachment of debts due from him, as an individual; and would not reach a debt due from a firm to the principal debtor, of which he was one of the members. This then would seem to be a good reason why the trustee was not bound to answer the inquiry made of him. In Worthington & Co. v. Jones & Trustee, 23 Vt. 546, it was held that whether a judgment should be rendered against a trustee on the ground of his refusal to answer a question put to him by the plaintiff was matter resting in the discretion of the county court, and that their decision was not a matter for revision in the supreme court. My opinion is that it was not competent for the county court to enlarge this attachment by an amendment of the trustee process while in court. If operative, it must have relation back to the time of the service of the trustee process; and most certainly the firm of Strong & Chamberlain might with safety have paid the principal debtor any demand which they owed him at any time before the amendment was made.

The judgment below is affirmed as to the trustee with costs.