Royal Bank of Canada v. Girard , 100 Vt. 117 ( 1927 )

The exception to the findings of facts is too general to be available. No particular finding is pointed out, nor is any particular fault indicated. Landon v. Hunt, 82 Vt. 322,73 A. 865; Eastern States, etc., League v. Estate of Vail, 97 Vt. 495,124 A. 568, 38 A.L.R. 845.

Since there is no available exception to the findings, we will not look back of them to ascertain whether the evidence supports the judgment. Laplante v. Camp, 96 Vt. 412, 120 A. 860. And the exception to the judgment raises only the question whether the findings are such as to support the judgment. Morgan v. Gould,96 Vt. 275, 119 A. 517; Crosby's Admr. v. Naatz, 98 Vt. 226,126 A. 547.

The trustee, in his brief, invokes the provisions of G.L. 1999, which provide that a trustee may deduct from the goods, effects and credits in his hands, his demands against the defendant on contract, express or implied, and shall be liable for the balance only after such demands are adjusted, citing Lynde v. Watson,52 Vt. 648, in which case it was held that such demands against the defendant, whether due or not yet due, are covered by the statute. But the trouble with the trustee's position in this respect is that he did not make this question below, and not being made in that court it cannot be made here in review. Blaisdell and Barron, Admrs. v. School District, 72 Vt. 63 . 47 A. 173; Lynds v. Plymouth, 73 Vt. 216, 50 A. 1083.

For the same reason the trustee cannot now raise the question that the fund, for which he is held chargeable, is jointly owned by the defendant and his wife, and so not subject to attachment for the sole debt of defendant. In addition to the fact that such joint ownership was not claimed below, counsel for the trustee expressly stated to the court "that all the ownership of those checks was jointly between Mr. Cutler, the trustee, and the defendant."

Under the agreement between the defendant and the trustee, one-half of the cream checks received by the defendant should be paid to the trustee to apply on the note given him for the purchase price of the farm. Up to May 21, 1925, the cream checks came from the milk dealers, made out payable to the order of the trustee; but thereafter the checks were made out to the defendant, but were sent to the trustee, and the defendant indorsed them. The trustee deposited them to his personal account in the bank and thereafter drew his own check for one-half of each and delivered it to the defendant. The amount which the trustee received after the service of the writ upon him and thus paid to the defendant as the latter's one-half of the checks was $343.19.

It is urged that even though the trustee did deposit in the bank the cream checks to his own personal account and then drew his check upon his account in the bank, that would not justify the judgment rendered; that depositing the checks in the bank did not change the relation of the parties to them; that as money belonging to the defendant it was never in the possession of the trustee, and there was never in the latter's possession property belonging to the defendant in his own separate right; that although the trustee may have drawn a check upon his account after making a deposit of the cream checks, this would have no significance without showing that the check drawn was upon the proceeds of the deposited cream checks, and this does not appear from the findings.

If a showing to the effect last stated were essential to the affirmance of the judgment, we would presume that the court below drew such an inference, as it well might, from the other facts found. But such a showing was not essential to the plaintiff's right of judgment against the trustee.

It is very likely true that so long as the cream checks as such remained in the possession of the trustee, one of the joint owners thereof, they were not subject to trustee process for the sole debt of the defendant, the other joint owner. Willard v.Wing, 70 Vt. 123, 39 A. 632, 67 A.S.R. 657. But when the trustee deposited them to his personal account in the bank, and applied his half thereof as part payments on the farm note, he in legal effect satisfied his own one-half interest therein, and thereafter held the other one-half interest as money or its equivalent belonging to the defendant. Meacham v. McCorbitt, 2 Met. (Mass.) 352; Hancock v. Colyer, 103 Mass. 396; Earle v.Whiting, 196 Mass. 371, 82 N.E. 32. By applying his definite share of each cream check, after it was thus deposited, as a payment on said note, and giving his own check to the defendant for the other like definite share, the trustee considered such deposits as equivalent to money and accounted to the defendant for his portion thereof as such. It thus appearing that the trustee received that which was considered equivalent to money and accounted for it as such, the case falls within the class where an action for money had and received would lie in favor of the principal defendant against the trustee (Burnap v. Partridge,3 Vt. 144; Kidney v. Persons, 41 Vt. 386, 98 A.D. 595), and so the latter is chargeable in this action as held below, the attaching creditor standing in the shoes of the principal defendant. Kettle v. Harvey, 21 Vt. 301; Smith v. Stratton,56 Vt. 362; Husted v. Stone, 69 Vt. 149, 37 A. 253; Baldwin v.Percival, 88 Vt. 211, 92 A. 101. The foregoing in effect disposes of all the questions properly presented for review.

Judgment affirmed.