Plante v. M. Shortell & Son, Inc.
| Decision Date | 06 January 1942 |
| Citation | 24 A.2d 498 |
| Parties | PLANTE v. M. SHORTELL & SON, Inc. |
| Court | New Hampshire Supreme Court |
Exceptions from Superior Court, Hillsborough County; Johnston, Judge.
Assumpsit for rent by Thomas C. Plante against M. Shortell & Son, Incorporated, wherein trustee process was served upon the Merchants National Bank. A judgment by agreement was rendered against the principal defendant and court ordered that the trustee be discharged and plaintiff brings exceptions.
Exceptions sustained and trustee charged.
Assumpsit for rent, commenced by trustee process against the Merchants National Bank. The trustee disclosed as follows: "There are no funds unless it can be shown that the sum of Seven Hundred Forty-four and Twenty-nine One Hundredths (744.29) Dollars now on deposit should not be held as an offset against a loan for more than that amount held by the bank." There was a judgment for the plaintiff against the principal defendant by agreement. At a hearing as to the chargeability of the trustee, it appeared that the defendant is the maker of a note originally for $40,000, payable to the Reconstruction Finance Corporation, dated September 13, 1938 and payable in installments. In this note the trustee purchased a fifty per cent participation. The participation agreement provides that the corporation shall hold the note and all collateral delivered in connection therewith; shall receive all payments on account of principal or interest and remit to the bank its pro rata share thereof, and the interest of the bank is further recognized by a provision in the note that the payee may declare all or any part of the indebtedness to be immediately due upon the happening of certain events, among which are: At the time the trustee process was served upon the bank there were installments due and unpaid in excess of $744.29, the amount of the defendant's deposit here in question. The court ordered that the trustee be discharged, and to this order the plaintiff seasonably excepted. A bill of exceptions was allowed by Johnston, J.
Sullivan & Dolan and Thos. E. Dolan, all of Manchester, for plaintiff.
Wyman, Starr, Booth, Wadleigh & Langdell, of Manchester, and Winthrop Wadleigh, of Manchester, for trustee.
The trustee takes the position that plaintiff's exception to the order discharging it raises no question of law, and relies upon the rule that "a party cannot question the sufficiency of evidence to support a verdict or material issue in a case by motion after the case has been submitted to the court or jury, or by an exception to the verdict." Head & Dowst Co. v. N. E. Breeders' Club, 75 N.H. 449, 450, 75 A. 982, 983. This contention must be overruled. The hearing in the present case was designed exclusively to secure a ruling of law as to the chargeability of the trustee. No other question was involved. The plaintiff's exception to the order of the court adequately challenged the correctness of that ruling and by the allowance of the bill of exceptions the question is properly presented to this court for decision. The rule above quoted has frequently been relaxed in cases tried by the court and has no application to the present situation.
The trustee relies upon the principle stated in a note to Walters v. Bank of America Nat. T. & S. Savings Ass'n, Cal...
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