Brunswick Gas-Light Co. v. Flanagan
| Decision Date | 03 February 1896 |
| Citation | 34 A. 263,88 Me. 420 |
| Parties | BRUNSWICK GAS-LIGHT CO. v. FLANAGAN et al. |
| Court | Maine Supreme Court |
(Official.)
Exceptions from superior court, Cumberland county.
Action by the Brunswick Gas-Light Company against John H. Flanagan. The Brunswick village corporation was summoned as trustee. Trustee discharged, and plaintiff excepts. Overruled.
This was an action of trespass on the case brought against the defendant for damages done to plaintiffs property, and the Brunswick village corporation was summoned as trustee. The trustee filed a disclosure. At a hearing before the court, the plaintiff claimed to hold the trustee on its disclosure, because the balance due the defendant, according to the disclosure, was a liquidated amount in the possession of the trustee, and, although not payable till a future time, yet it was an ascertained and fixed sum, subject to no conditions such as would bar the plaintiff from securing the same, or a part thereof, on his attachment.
The plaintiff further contended that the orders and the assignment that appear in the disclosure were void as against this plaintiff, because said orders and assignment are ultra vires the committee of the trustee to accept, under the contract between said trustee and this defendant; that the orders and assignment were manifestly a tentative effort on the part of the committee of the trustee to cover up and shield the said balance in their hands against such claims as had been provided for in said original contract between said defendant and the Brunswick village corporation, and therefore void.
The court overruled the points made by plaintiff, and ordered the following entry: "Trustee discharged, with costs."
George E. Hughes, for plaintiff.
Barrett Potter, for trustee.
The trustee discloses in its hands $3,120.12, being 20 per cent. of the contract price retained as security for the completion of the same. $1,500 of this is held by a trustee under an assignment for the benefit of defendant's contract creditors, who had become parties to the assignment. Cemetery v. Davis, 76 Me. 289. $827.25 more is held by the payee of an order accepted by the trustee, and $1,000 upon still another order, also duly accepted. All these sums aggregate $3,327.25, or $207.13 more than the sum in the trustee's hands, and, therefore, he was properly discharged below. Jenness v. Wharff, 87 Me. 307, 32 Atl. 908.
Moreover, the plaintiff has elected to proceed with his case without...
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