Miller v. Lake , 1884 W. Va. LEXIS 79 ( 1884 )

Johnson, President:

The first questions presented is: Has equity jurisdiction of this case? Should the demurrer have been sustained? Judge Story, 2 Eq. Jur. sec. 1041 says: “In the common case where money or other property is delivered by a bailor to B. for the use of 0. or to be delivered to C. the acceptance of the bailment amounts to an express promise from the bailee to the bailor, to deliver or pay over the property accordingly. In such a case it has been said that the person for whose use the money or property is so delivered, may maintain an action at law therefor against the bailee, without any further act or assent on the part of the bailee; for a privity is created between them by ■ the original undertaking. But of this doctrine some doubt may perhaps be entertained, unless there'is some act done by the bailee, or some promise made by him, whereby he shall directly contract an obligation to such person, to deliver the money or other property over to him; otherwise it would seem that the only contract would be between the bailor and his immediate bailee. But be this as it may it is certain that a remedy would lie in equity under the like circumstances as a matter of trust; for it is laid down in a work of very high authority ‘if a man give goods or chattels to another upon trust to deliver them to a stranger chancery will oblige him to do it.’ ”

Under the circumstances set out in the original and amended bills we have no doubt an action at law would have been proper to compel the payment of the money, after it was collected, to William Miller & Co. as money received to their use. (Nutter v. Sydenstricker, 11 W. Va. 535.) But it is one of those cases of trust, in which equity has concurrent jurisdiction with the law court. The arrangement made by Lake with Bogers clearly constituted him trustee for the plaintiffs; and when the money was collected by him as such trustee, he should have paid it over to the plaintiffs. • The demurrer was properly overruled.

Lake in his answer relies on the statute of limitations. It is clear from the record that the claim is not barred.

Lake denies the material allegations of the bill, and so docs the defendant, Bogers; but the allegations of the bill and amended bill are substantially proved. It appears that the plaintiffs accepted the collaterals in satisfaction of their debt, and in the hill and amended hill agree to take the amount of the claim against Taylor county, which was collected by Rogers in satisfaction of the collaterals against Deahl. The decree therefore for the amount of said claim and interest amounting at the date of the decree to one hundred and seventy-two dollars and sixty-nine cents with interest from that date is right, and so far it is affirmed, and the appellees must recover of said J. M. Rogers the costs of this appeal, but that portion of said decree which is against J. M. Lake is reversed, and the decree corrected so as to give costs in the court below against J. M. Rogers.

Affirmed in Part. Reversed in Part.