Davis v. Goulette , 81 Vt. 255 ( 1908 )

Munson, J.

The defendant, a French-Oanadian, who could not speak much English, nor read it at all, nor write his name, entered the service of the trustee April 6, 1905, under an arrangement made through an interpreter, a friend of the defendant, who gave the defendant’s name to the trustee’s timekeeper as Arthur Goulette. This name was entered on the trustee’s books, and defendant’s work of April sixth and seventh was credited under it. The same work was also entered under the name of Charles Goulette, and defendant’s subsequent work was credited on this account; the first account remaining without further credit and unadjusted. Nothing explanatory appears. The writ was served on the trustee April 26, and on the defendant May 12. The defendant worked until May first, and then applied to the trustee’s agent for his pay, presenting a time-slip made out in the name of Charles Goulette; whereupon the agent, .who had no knowledge of the defendant, settled with him from the Charles Goulette account. —the defendant receipting for the payment by making his mark, and the agent completing the signature by affixing the name “Charles Goulette.”

The trustee claims protection under Y. S. 1366, which provides that a trustee shall not be held chargeable for a payment made in good faith after the process has been served on him but before he has knowledge of it. The case presented is not within the terms of the statute. The trustee had knowledge of the service of the writ when it made the payment, but did not understand that the moneys credited on its books to Charles Goulette were the earnings of the defendant. But the trustee contends that a. payment made in ignorance of the defendant’s ownership is within the spirit of the statute, and one that would entitle it to relief independently of the statute. There may be circumstances in which ignorance of the defendant’s connection with the fund will entitle a trustee to the same protection as ignorance of the service of the writ, but the case presented here is not within the authorities relied upon. In Laundry v. Chayret, 58 N. H. 89, the trustee did not have the name of the defendant on its payroll, and had no knowledge of the existence of such a person; and the court said there was nothing to put the trustee upon inquiry concerning the identity of the defendant with the person to whom the payment was made. In Hamlin v. Huse, an unreported case cited in the case just referred to, the trustee’s agent examined its books without finding the defendant’s name, and could not learn by inquiry that any person of that name had been in the trustee’s service. In this ease the defendant was employed, and entered upon the trustee’s books, and credited with his first earnings, under the name by which he is sued, only three weeks before the trustee process was served. The service of a process in that name ought to have brought the original entry to the trustee’s notice, and have led to an inquiry regarding the change in the accounts. The case leaves the trustee in fault in crediting the defendant’s earnings under another name, and in failing- to ascertain the fact when put upon inquiry; and one thus in fault cannot be heard to say that he made the payment in good faith.

The court below inadvertently rendered a judgment against the trustee larger than that against the defendant, and the plaintiff has filed in this Court a remittitur of the excess. This modification of the judgment entitles the trustee to its costs in this Court. Crampton v. Valido Marble Co., 60 Vt.291; 15 Atl. 153, 1 L. R. A. 120; See Brown v. Davis, 19 Vt. 603; Bliss v. Little’s Est., 64 Vt. 133, 23 Atl. 725.

Judgment affirmed, less the amount remitted, with costs to the trustee in this Court.