The Travellers Insurance Company v. Caldwell

• Decision Date: 05 March 1898
• Docket Number: 10470
• Citation: 59 Kan. 156,52 P. 440
• Parties: THE TRAVELLERS INSURANCE COMPANY v. CLINTON L. CALDWELL, as Assignee, et al
• Court: Kansas Supreme Court

52 P. 440

59 Kan. 156

THE TRAVELLERS INSURANCE COMPANY v. CLINTON L. CALDWELL, as Assignee, et al

No. 10470

Supreme Court of Kansas

March 5, 1898

Decided January, 1898.

Error from Labette District Court. J. D. McCue, Judge.

Judgment affirmed.

G. S King, for plaintiff in error.

Webb & Iden, for defendants in error.

OPINION

DOSTER C. J.

Angell Matthewson & Co. a firm of real estate loan and collection agents, made an assignment to the defendant in error, Clinton L. Caldwell, as assignee, for the benefit of their creditors. One of the creditors was the plaintiff in error, the Travellers Insurance Company. They were indebted to it for collections made on its loans and from the tenants of its lands. It was claimed by the plaintiff in error that according to the course of dealing between the parties these collections should have been remitted immediately upon their receipt, but that this was not done then or at any time thereafter. After the assignment, suit was brought to declare a trust, in Matthewson & Co. and the assignee, for the plaintiff in error in respect to these collections, and for an order upon the assignee to pay the amount as a preferred claim. The District Court gave judgment for the assignee, and the plaintiff brings the case to this court for review. Findings of fact were made, a part only of which it will be necessary to notice. These are as follows:

"10. No part of the estate received by the assignee was purchased or obtained by said Matthewson & Co. from the proceeds of the collections hereinbefore referred to.

"11. All the assets of said firm coming into the hands of the defendant as assignee were owned by said firm prior to receiving any of the moneys on the collections hereinbefore referred to.

"12. The moneys so collected for said plaintiff by said Matthewson & Co. were used by said firm in payment of debts and expenses of said firm."

"14. The plaintiff's said claim for $ 1317.19 and $ 1259.83 aggregating $ 2,577.02, for moneys collected and received by Matthewson & Co. as hereinbefore found, were duly presented to the defendant assignee for adjustment and allowance at the time and place advertised and were then and there adjusted and allowed by said defendant assignee as trust claims."

The first three of these findings bring the case within the rule of Burrows v. Johntz, (57 Kan. 778, 48 P. 27). It was held in that case that, "to render an assignee liable to account to a party who had placed money in the hands of his assignor as for a trust fund, it must appear either that the fund actually came into the hands of the assignee, or that it went to swell the estate of the assignor, which he in fact received." According to the above findings, the assignor did not come into the possession of the moneys received on the collections in question, nor into the possession of any property into which the proceeds of such collections went. The fact, as shown by the twelfth finding, that the collections were used by Matthewson & Co. in the payment of debts and expenses does not suffice, in view of the other findings, to charge the estate with a trust in the hands of the assignee. The fund itself, or something into which it has gone and which stands as its representative, must be on hand, subject to identification, and separable from the general assets, in order to charge the assignee with the trust; or, if the fund has been so commingled with the general assets as to be incapable of identification or tracing, the estate which came to the assignee must have been augmented or bettered, in an appreciable and tangible way, in order to charge it with the trust. The mere saving of the estate by the discharge of general indebtedness otherwise payable out of it, or by the payment of the current expenses of the business, is not an augmentation or betterment of the estate, within the meaning of the rule. If the estate has not been increased by specific additions to it, or if what previously existed has not been...