Hivick v. Hemme

• Decision Date: 16 March 1926
• Docket Number: Case Number: 16158
• Citation: 118 Okla. 167,247 P. 692,1926 OK 247
• Parties: HIVICK v. HEMME.
• Court: Oklahoma Supreme Court

1926 OK 247

247 P. 692

118 Okla. 167

HIVICK v. HEMME.

Case Number: 16158

Supreme Court of Oklahoma

Decided: March 16, 1926

Syllabus

¶0 1. Trusts--Express Trust Unexecuted--Liability of Trustee for Trust Fund.

One who receives a fund as trustee of an express trust and has not spent it for the trust purposes is treated as if the fund were still in his hands, and he cannot say it is not. If such trustee breaches his trust by expending the fund otherwise than in execution of the trust, his personal liability to the trustors is a simple contract equitable debt.

2. Same--Trustee Cannot Set Up Own Breach--Constructive Fraud.

Breach of trust is a wrong, and a constructive fraud arises upon such breach of trust. A trustee cannot take advantage of his own wrong by setting up his own breach of trust.

3. Limitation of Actions--Trusts--Unequivocal Repudiation of Trust Necessary to Start Running of Statute Against Enforcement of Express Trust.

Where a trustee accepts a fund on an express agreement to expend same for specified purposes, his holding of the fund, after failure to execute the trust, can be converted into one adverse to the trustors, starting limitation against a suit to recover the fund, only by a clear and unequivocal declaration of such intention brought home to plaintiff.

4. Disposition of Cause.

Under the foregoing rules, the court erred as to a pure unmixed question of law in granting new trial to defendant, and in setting aside verdict for plaintiff, no discretion of the court being involved therein. The cause is accordingly reversed for judgment for plaintiff.

Commissioners' Opinion, Division No. 2.

Error from District Court, Payne County; Charles C. Smith, Judge.

Action by L. C. Hivick against F. M. Hemme. Judgment for plaintiff, and from order setting aside the verdict and granting new trial, plaintiff appeals. Reversed.

Giddings & Giddings and Geo. H. Giddings, Sr., for plaintiff in error.

John P. Hickam, for defendant in error.

ESTES, C.

¶1 Parties appear here in the same order as in the trial court. The Producers Lead & Zinc Company, a corporation, had constructed a mill for mining lead and zinc on its property, plaintiff being an officer and director, and defendant a stockholder. On May 19, 1919, the company being largely indebted, the directors passed a resolution providing that subscription be circulated among the stockholders:

"To pay off certain indebtedness due the McNeal Machine Company and the Landreth Machine Company, and insurance and other incidental indebtedness, the principal part of which is secured by liens on certain of the property of the company and which liens are threatened to be foreclosed, it being understood that the persons who advanced any money for the purpose of paying this indebtedness are to pay the same to F. W. Hemme, and as soon as the full sum of $ 12,000 shall be paid to said trustee, the said trustee shall discharge said indebtedness, and as a part of said transaction, the president and secretary of the company are hereby authorized and directed to execute and deliver to said trustee the promissory note and mortgage of the company, * * * which said mortgage shall give to said trustee a lien upon the real estate, leasehold, and equipment belonging to the company (describing same) * * * to be delivered to the trustee upon production of the receipts for the payment of the $ 12,000 indebtedness, and said mortgage shall provide and show who the beneficiaries are under said trust, and the respective amounts of their interest as representing and showing the amount paid in by him or them."

¶2 Defendant, among other things, testified:

"They said they were shut down and we couldn't run the mill, they owed about $ 12,000, and unless we could raise that, the mill would be sold, and it was talked about and we thought we could raise that money and lift the debts so we could run the mill. * * * There was talk that the stockholders would all throw in.* * * We was to raise $ 12,000, and if we could not raise it, I was to return that money back, and Mr. Hivick suggested to let me go and pay this. * * * Mr. Hivick gave me a check for $ 1,500 and Mr. Smith gave me his check for $ 500. * * * If we couldn't raise it, each one was to get it back, but every person that subscribed to this was to get a note with eight per cent. interest. * * * I was appointed trustee before I was appointed director."

¶3 Pursuant thereto, other stockholders paid defendant certain sums which, together with the payments of plaintiff and Smith, aggregated $ 3,520. Plaintiff and Smith retired as directors, and defendant was elected president and director on the same day the foregoing arrangement was made for saving the property by liquidating the indebtedness. Defendant seems to have undertaken thereafter to operate said mill for a number of months, during which time certain other indebtedness was incurred. He advanced the balance of the $ 12,000 himself. Instead of paying and discharging the indebtedness referred to in said resolution, he purchased same, causing the liens to be assigned to himself. C. E. Matthews Lumber Company sued Producers Lead & Zinc Company in the district court of Ottawa county, where the property was, seeking foreclosure of lien for material. Defendant purchased that indebtedness and caused the lien to be assigned to himself, and by order of the court was substituted as plaintiff in that case. Thereafter, he prosecuted same to judgment, and on this and other liens purchased by him and referred to in said resolution, procured judgments against the company and sold the entire plant and property on execution. At the time the trust agreement was made, the company was indebted to plaintiff, Hivick, for about $ 20,000 for cash loaned by him to the company. He took a mortgage on the property junior to the liens to be paid under said resolution. On said foreclosure by defendant, the property did not bring sufficient to pay all indebtedness, and the court prorated the proceeds of the sale between plaintiff on his second mortgage and defendant, on certain of the liens which he had purchased so as aforesaid. Plaintiff thereafter brought this action against defendant for the $ 1,500, which he had so paid to defendant, and the $ 500, so paid by Smith, and his claim therefor assigned to plaintiff, and interest. On trial to a jury, a verdict was rendered for plaintiff for $ 2,500. Instead of entering judgment on the verdict, the court granted a new trial to defendant, not specifying ground therefor. From such order granting such new trial, plaintiff prosecutes error. It is assigned that the court erred in sustaining said motion for new trial and setting aside the verdict of the jury, because under defendant's own evidence and the undisputed facts, defendant was liable as matter of law for the amount awarded by the jury.

1. Under the undisputed facts, including defendant's own testimony, he breached his trust agreement. The record does not show that he did so willfully or with fraudulent intent. He accepted the money as part of a trust fund. As a trustee thereof, under his own testimony, he could do only one of two things--he could use this $ 2,000, together with other funds, to discharge the specific liens on the property for the payment of which such trust fund was created, or repay the trust fund to the trustors.

¶4 In Davis v. Hoffman (Mo.) 67 S.W. 234, dealing with a breach of trust, it is said:

"He misappropriated it and therefore he is liable for the whole of it, and it is immaterial how he spent it or who benefited by it. In equity he received it as trustee and has not spent it for the trust purposes, and therefore it is treated as if it was still in his hands, and he cannot say it was not."

¶5 In Pom. Eq. Jur. (3rd Ed.) section 1080, it is said:

"The trustee's personal liability to make compensation for the loss occasioned by the breach of trust, is a simple contract equitable debt."

¶6 The same author (3rd Ed.) section 1079, says:

"It might be supposed that the term 'breach of trust' was confined to willful

...