Myers' Ex'r v. Zetelle

• Decision Date: 14 March 1872
• Citation: 62 Va. 733
• Parties: MYERS' ex'or v. ZETELLE. PIZZINI'S committee v. ZETELLE.
• Court: Virginia Supreme Court

62 Va. 733

MYERS' ex'or v. ZETELLE.

PIZZINI'S committee v. ZETELLE.

Supreme Court of Appeals of Virginia.

March 14, 1872

1. Z a foreigner, who had lived some years in Richmond, was the owner of a house and lot in the city, and some furniture, and he held debts due to him, and among them the bond of P, for $5,000, bearing interest, and due in November 1865, secured upon a house and lot. Z having determined to leave the country with his family for an indefinite time, on the 9th of September 1861, executed a power of attorney to M and C, by which he conferred on them the most ample powers and the largest discretion for the management of his business and the disposition of his property. On the same day Z and his wife conveyed to M and C his house and lot, in trust to rent or sell it at their discretion, and pay him the proceeds. He then left the country, and M and C received no communication from him, and had no knowledge of his residence until 1865 when he returned to Richmond. In the meantime they received payment of the debts due Z, and also of the debt of F before it fell due, and they sold the house and lot; and in 1863 invested all the funds in their hands in Confederate bonds for Z. There was no question of the bona fides of M and C in all that they did. HELD:

They are not responsible to Z for the loss which occurred by the investment in Confederate bonds; nor is P liable to him for his debt.

2. An agent or trustee acting within his power, and acting in good faith, in the exercise of a fair discretion, and in the same manner in which he would probably have acted if the subject had been his own, he ought not to be held responsible for any loss accruing in the management of the trust fund.

3. Pre-eminent knowledge and uncommon foresight are not required in a trustee. Ordinary men are to be compared and judged by the standard of ordinary men. Common skill, common prudence and common caution are all that courts have required.

4. It would be unreasonable to judge of the conduct of an agent or trustee, from subsequent events. His conduct ought not to be condemned if it flowed from an honest though uninformed and mistaken judgment.

This is the sequel of the case of Zetelle v. Myers &amp al., reported in 19 Grattan 62. When the cause went back to the Circuit court, the plaintiff, Zetelle, dismissed his action at law, and amended his bill, bringing into the cause the subject of the agency of Myers and Cridland under the power of attorney, as well as under the deed conveying to them the house and lot.

Myers answered the amended bill; evidence was introduced; and Myers having died, and the suit having been revived against his executor, the cause came on to be heard on the 10th of January 1870, when the court made a decree against Myers' executor and Cridland for nine thousand seven hundred and eighty-three dollars and fifty-three cents, with legal interest thereon from the 16th of January 1863, until paid; that being the amount that Myers had received by virtue of his agency, after deducting his disbursements amounting to $732.78, and Pizzini's bond for $5,000 which he had collected; and also made a decree against Pizzini for $5,000, the amount of his bond to Zetelle, with interest from the 1st of November 1861, until paid. And thereupon Myers' executor and Pizzini's committee applied to this court for appeals from the decree; which were allowed. The case is sufficiently stated in the opinion of Christian, J.

The cases were heard together and were argued by C. Robinson, J. Alfred Jones, A. Johnston, Meredith and Evans, for the appellants; and Neeson and Hunter Marshall, for the appellee.

CHRISTIAN J.

This is an appeal from a decree of the Circuit court of the city of Richmond.

The case is for the second time before this court.

The novelty of the questions which it presents, the importance of the principles to be settled, the marked ability and learning which have characterized the arguments of counsel, who with equal confidence, have pressed the claims of their respective clients, have demanded and received from this court a careful and anxious consideration.

When the case was before this court in 1869, there was no expression of opinion, as to the merits of the controversy; but the plaintiff in the court below (Zetelle) having instituted his action at law, as well as his suit in equity, on account of the same transactions, this court sent the cause back to the Circuit court, with directions to that court, to make an " order requiring the said plaintiff to make his election within a specified time, whether he would amend his bill in this case so as to embrace therein the transactions under the power of attorney, as well as those under the deed of trust, and dismiss his action at law, or whether he would prosecute his action at law."

In accordance with this order, the plaintiff (Zetelle) dismissed his action at law, and at March rules, 1869, filed his amended bill, to which bill Gustavus A. Myers, Frederick J. Cridland and Andrew Pizzini were made defendants. Gustavus A. Myers having departed this life after the bill was filed, it was revived by scire facias against his executor, and on the 10th day of January 1870, the Circuit court of the city of Richmond, pronounced its decree, directing, " that the defendants, Frederick J. Cridland and William B. Myers, executor of Gustavus A. Myers, deceased, out of the assets of his testator's estate in his hands to be administered, do pay to the plaintiff, nine thousand seven hundred and eighty-three dollars and fifty-three cents, with legal interest thereon from the 16th day of January 1863, till paid; and that the defendant, Andrew Pizzini, do pay to the said plaintiff the sum of five thousand dollars, with legal interest thereon from the 1st day of November 1861, till paid." From this decree Myers' executor and Pizzini have been allowed an appeal by this court; and the case is now before us to be considered on its merits.

The facts disclosed by the record are substantially as follows:

Spiro Zetelle, a resident of Richmond, of foreign birth, and who had not been naturalized, being about to go to Europe, for an indefinite time, on the 9th day of September 1861, executed a power of attorney by which he constituted Gustavus A. Myers and Frederick J. Cridland his agents and attorneys in fact, for the management and disposition of his property and business during his absence from the country. The powers conferred by this instrument were of the most ample character, and will be more particularly noticed presently.

At the time this power was executed, Zetelle was the owner of a house and lot in the city of Richmond (which was in the occupation of a tenant), together with some furniture and personal effects; and also had debts due to him, amounting to several thousand dollards, due at different times from November 1st, 1861, to November 1st, 1865. On the same day (September 9th, 1861,) on which the power of attorney was executed, Zetelle and wife executed a deed by which they conveyed the house and lot to Myers and Cridland, trustees, with power to lease, rent, or sell the same, " as to the said trustees shall seem most beneficial." This deed of trust, and power of attorney, executed at the same time, and for the purpose of effecting the same general object, to wit: the management and disposition of the plaintiff's property during his absence from the country, were duly executed and admitted to record in the clerk's office of the Hustings court for the city of Richmond on the 11th of September 1861. Shortly thereafter Zetelle, with his family, left the country for Europe, and did not return to Richmond until April 1865. No communication was received by Myers and Cridland, or either of them, from Zetelle, during his absence.

In March 1862, Myers and Cridland made sale of the real estate and received the proceeds of sale. Among other evidences of debt received by them from Zetelle was a bond of Andrew Pizzini for five thousand dollars, payable on the 1st day of November 1865; and secured by a deed of trust on certain real estate in this city; also three negotiable notes of C. Wendlinger for $1,030 each, payable at six, twelve, and eighteen months from the 1st July 1861. These were also well secured upon real estate in the city of Richmond.

Pizzini's debt was paid on the 9th January 1863, and the notes of Wendlinger were paid, the first in January 1862, and the other two in July 1862. These debts, as well as the proceeds of sale of the real estate, were all paid in Confederate States treasury notes, these being the only currency in circulation at that time. These different amounts, together with collections made of rents, and sales of furniture, were deposited, as received, in the Farmers Bank of Virginia, to the credit of Myers and Cridland, attorneys and trustees of Zetelle; and all checks drawn upon the fund were signed by both Myers and Cridland. In January 1864, the balance remaining to their credit was invested in Confederate States eight per cent. coupon bonds. These bonds, enclosed in an envelope, were deposited in the Farmers Bank, endorsed with the following words: " 15 C. S. bonds representing $14,500, with coupons attached to the bonds. The property of Spiridione Zetelle, an Ionian subject, and under the protection of Great Britain. Deposited in the Farmers Bank of Virginia by Gustavus A. Myers and Frederick J. Cridland attorneys and trustees of said Zetelle. January 21, 1864." This endorsement is in the hand-writing of Cridland. It is evident that the agents had two objects in making this deposit and endorsement: first, to keep the fund separate and distinct from their own funds; and second, to protect the fund against the sequestration laws of the...