Martin Brown Co. v. Perrill
| Decision Date | 06 May 1890 |
| Citation | 13 S.W. 975 |
| Parties | MARTIN BROWN CO. <I>v.</I> PERRILL <I>et al.</I> |
| Court | Texas Supreme Court |
Wray & Stanley and B. D. Tarlton, for appellant. S. C. Upshaw, Joseph Abbott, McKinnon & Carlton, and J. G. Abney, for appellees.
Maggie S. Perrill brought this suit against W. M. Perrill and P. F. Fox, partners doing business under the firm name of Perrill & Fox, to recover the amount due upon a promissory note extended by them to W. M. Perrill as her trustee. W. M. Perrill is her husband. She also caused a writ of attachment to issue, and to be levied upon a stock of goods belonging to the defendants. The goods were sold as perishable property, and the proceeds paid into court to await the determination of the suit. The appellants, the Martin Brown Company, and Mandeville, Boling, and Traylor, being creditors of the firm, also brought suits on their debts, and caused attachments to issue, and to be levied upon the stock of goods attached by Mrs. Perrill. Having obtained judgments on their respective claims, they intervened in this suit, alleging that the attachment of Mrs. Perrill was in fraud of their rights, and praying that the fund paid into court as the proceeds of the sale of the goods attached be appropriated to the payment of their demands. There was a verdict and judgment against them, and they have appealed to this court.
The grandfather of Mrs. Perrill died in North Carolina, having bequeathed to her a share of his estate. That bequest was contained in the following provision of the will: The Maggie Bullock named in the will is the appellee Mrs. Perrill. The executor of the will, having on hands certain bonds amounting to $6,000, a part of her distributive share of the testator's estate, transmitted them to W. M. Perrill, her husband, who agreed to hold the fund as her trustee, and gave bond to the executor to secure a faithful administration of the trust. The bonds were subsequently sold, and the proceeds loaned to Perrill & Fox. On the 1st day June, 1886, for the principal and interest due on this loan, they executed the note upon which this suit was brought. It was payable to "W. M. Perrill, trustee for his wife." We think the court did not err in refusing to compel the defendant Fox, while on the stand, to produce the books of the firm which showed the partnership indebtedness in December, 1884. The controversy in the case was between Mrs. Perrill, the plaintiff, and the intervenors. The books of Perrill & Fox, though they may have been used as evidence against them upon any issue to which the entries therein would have been relevant, were not evidence against her. They could not have used the books to defeat her action, nor do their creditors, in a suit of this character, occupy any better position. It seems to be complained that there was a conspiracy between the plaintiff and the defendants to defraud the creditors of the latter, and that, therefore, the acts and declarations of each of these parties were evidence against the other. The effort of the intervenors was to establish such conspiracy, but there was no evidence adduced sufficient to authorize the court to determine even prima facie the existence of any such conspiracy in January, 1884. Such proof was a necessary predicate to the introduction of evidence of the acts or declarations of the defendants against the plaintiff.
The court having properly refused to require defendant Fox to produce the books of his firm, it was not error to restrain counsel for intervenors from commenting upon the failure to introduce them in evidence in his argument to the jury.
We do not consider it necessary to determine the legal effect of the clause in her grandfather's will, under which the plaintiff claimed the fund which was lent to defendants. Her husband received the bonds, and sold them as her trustee; and of him, as her trustee, they were borrowed by the partnership of which he was a member. The defendants are clearly estopped to deny the trust. Portis v. Cummings, 21 Tex. 265. It is true that, if the money had been lent by her husband as her trustee to third parties, he would have been the proper party to bring a suit for its recovery in the event of a default in the payment of the debt. But in this case, he being the payee of the note, and the firm of which he was a member being the makers, we think that, when suit became necessary to secure the debt, the wife had the right to bring it in her own name. She was the sole existing beneficiary of the fund. The defendants had expressly agreed to repay it for her use. If the husband, as her trustee, could have sued his firm for the recovery of the debt, it would have been unreasonable to require her to await his action when it became evident that the firm was insolvent, and there was danger of losing the fund. Under such a state of facts, a rule which would deny her the right to sue for and recover the money would be an anomaly in our system of jurisprudence, in which legal and equitable demands are enforced through the same methods of procedure. It may be that the money should not be paid into her hands, but this should be no obstacle to her prosecuting the case to judgment. The court, in exercise of its equitable powers, has authority to direct that it shall be paid only to a trustee who shall have given bond to secure the administration of the fund in accordance with the terms of the bequest.
Appellants insist that the judgment is erroneous in so far as it allows plaintiff a recovery for the interest on the money derived from the sale of the bonds. It is settled law in this state that interest derived from a loan of money, the separate property of the wife, belongs to the community estate. Braden v. Gose, 57 Tex. 37. It is contended that the rule applies in this case, and that the interest was community property of Perrill and his wife, and subject to the payment of his debts, and that, therefore, there should have been no recovery for the interest as...
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