Johnson v. Hersey

• Decision Date: 30 March 1882
• Parties: RALPH C. JOHNSON and others, executors, v. PHILO HERSEY and another, and GEORGE G. PIERCE and others, trustees.
• Court: Maine Supreme Court

73 Me. 291

RALPH C. JOHNSON and others, executors, v. PHILO HERSEY and another, and GEORGE G. PIERCE and others, trustees.

Supreme Judicial Court of Maine.

March 30, 1882

ON REPORT.

Assumpsit upon a promissory note of two thousand dollars.

The question presented by the report was the liability of George G. Pierce and A. B. Mathews as trustees.

In May 1874, and long before, the defendants were partners under the firm name of Hersey and Woodward. In 1873, one of the defendants, Woodward, gave Pierce a note for five hundred dollars, signed by Woodward as principal and the other defendant, Hersey, as surety. Pierce left the note at the Belfast Savings Bank on his departure for Chicago. May 1 1874, without the authority, knowledge or consent of Hersey Woodward drew two drafts in the name of the firm, one for three hundred dollars on D. M. Hodgden and Company, of Boston, and the other for two hundred and thirty-five dollars on Leland, Rice and Company, of Boston, and paid and delivered the same to the treasurer of the Savings Bank to pay the Pierce note. The drafts were upon funds of the firm and were accepted and paid and the treasurer of the Savings Bank sent to Pierce the five hundred and thirty-five dollars by draft on Howard National Bank, Boston.

In the case of Mathews, the report shows that he sold Woodward some furniture and that Woodward paid him on account one hundred dollars by the draft of Hersey and Woodward on D. M. Hodgden and Company, without the authority, knowledge or consent of Hersey. Mathews testified that at the time he received the draft, he did not know anything about the financial condition of Hersey and Woodward, that he had no reason to believe the firm insolvent, and that he did not know whether or not Woodward paid the firm for the draft.

William H. Fogler, for the plaintiffs, cited: Blodgett v. Sleeper, 67 Me. 499; Johnson v. Hersey, 70 Me. 74; Ex parte Weston, 12 Met. 1; Ex parte First National Bank, 70 Me. 373.

N. H. Hubbard, for the trustees.

The drafts in this case were discounted by the bank and became the property of the bank, the proceeds were the property of Hersey and Woodward and by direction of Woodward were applied to the payment of the Pierce note, and the mis-appropriation was by the bank and not by Pierce who could have no knowledge from whose funds or how his note was paid.

PETERS J.

In this case, as to the other trustees, it was held, that, " where one...