Morse v. Stevens
| Decision Date | 05 January 1922 |
| Citation | 115 A. 697,95 Vt. 465 |
| Parties | GEORGE A. MORSE v. HOWARD C. STEVENS AND TRUSTEE |
| Court | Vermont Supreme Court |
November Term, 1921.
ACTION OF CONTRACT. Heard on an agreed statement of facts in vacation after the June Term, 1920, Lamoille County, Chase J., presiding. Judgment for the plaintiff against the principal defendant, and judgment discharging the trustee with costs. From the last judgment the plaintiff excepted. The opinion states the case.
Judgment affirmed.
F G. Fleetwood for the plaintiff.
Charles H. Adams for the claimant.
Present WATSON, C. J., POWERS, TAYLOR, MILES, and SLACK, JJ.
The only question to be determined in this case is whether the judgment discharging the trustee should be sustained.
The case was heard below on an agreed statement of facts. The facts material to our inquiry are these: At the time the writ was served upon the trustee, October 24, 1919, the defendant was owing him between $ 1,700 and $ 1,800 on a note defendant gave him the March previous, and the trustee then held as collateral security for the payment of that note certain other notes that belonged to defendant, amounting to $ 7,500 which notes were signed by one Villeneuve and were payable to defendant or bearer. These notes were transferred by defendant to the trustee for the purpose aforesaid, and notice of such transfer was given by the trustee to Villeneuve before the writ was served.
The plaintiff contends that the balance of the Villeneuve notes not required to secure the payment of the note given by the defendant to the trustee is "goods, effects," and "credits" in the hands of the trustee belonging to the defendant, within the meaning of G. L. 1937. The language of this statute is not broader in terms than the language of the statute which has been in force since 1797. Our first trustee law, approved October 31, 1797, provided, "that if any person or persons, shall have in his, her or their possession, any money, goods, chattels, rights or credits," etc. The phraseology was changed to the present form, "goods, effects or credits," in the revision of 1839. R. S. Ch. 29, Sec. 4. An examination of the cases where these statutes have been construed shows conclusively that the balance of the Villeneuve notes not required to secure the payment of the note given by defendant to the trustee would constitute goods, effects, and credits in the hands of Villeneuve for which he would be chargeable as trustee of the defendant. Perrin v. Russell, 33 Vt. 44; Downer v. Tarbell, 32 Vt. 22; Fay v. Smith, 25 Vt. 610. They make it equally clear, we think, that on the facts appearing in this case, the trustee was properly discharged. One cannot be charged as trustee on the ground of having in his hands mere securities for money belonging to the principal debtor. Sargeant v. Leland, 2 Vt. 277; Hitchcock v. Egerton, 8 Vt. 202; Denison v. Petrie, 18 Vt. 42; Scofield v. White, 29 Vt. 330; Van Amee v. Jackson, 35 Vt. 173; Stickney v. Crane, 35 Vt. 89; Stevens v. Kirk, 37 Vt. 204.
Provisions similar to those prescribed by G. L. 1981 to 1989, for enforcing a judgment against one held chargeable as trustee by reason of having in his hands personal property other than money, belonging to the principal defendant, were available when the cases cited were decided. R. S. Ch. 29, § § 20 to 28; Revision 1797 p. 502, § 5, pars. 2 and 4. The Court had these provisions in mind in Sargeant v. Leland when it said: In Denison v. Petrie, notes signed by Woodward and payable to Petrie were left by the latter with English to collect. Suit was brought against Petrie, and English as trustee. In the course of its opinion holding English not chargeable the Court said: ...
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