Thurm v. Wall
| Decision Date | 14 May 1954 |
| Docket Number | No. 1477.,1477. |
| Citation | 104 A.2d 835 |
| Parties | THURM v. WALL. |
| Court | D.C. Court of Appeals |
Before CAYTON, Chief Judge, and HOOD and QUINN, Associate Judges.
This was originally a suit for unpaid rent instituted by Jacob Wall against J. W. Welch. On the date suit was filed Wall caused a writ of attachment before judgment1 to be issued, on the ground that Welch had removed his property with intent to defraud his creditors. Under the writ the sum of $210.06 was seized in the hands of Weschler, a local auctioneer. Welch filed a motion to quash the writ of attachment contending The motion to quash the writ was denied, and thereafter Thurm, appellant herein, filed a petition2 to the answer of Weschler, contending that the funds held by Weschler were not subject to attachment as money belonging to Welch.
At the hearing on his petition Thurm testified in substance to what was set forth by Welch in his motion to quash the writ of attachment. Welch corroborated his statements. He further stated that he did not inform the auctioneer that the sale was for the benefit of anyone other than himself, and "when he picked-up the proceeds he would have immediately paid it over to the claimant herein as agreed upon, and had he been paid by check he would have requested such check to be drawn to the order of the claimant herein." The trial judge found in favor of Wall on Thurm's claim, and this appeal followed.
Thurm contends that the trial court erred as a matter of law in not finding that Welch was merely a trustee of the funds involved, or, in the alternative, that Welch was his agent in disposing of the furnishings. As the alleged agreement between Thurm and Welch was admittedly oral, and not evidenced by a writing in any manner, Thurm is contending that the rights of the creditor Wall should be defeated by a parol trust agreement. In Chiswell v. Johnston, 55 App.D.C. 3, 299 F. 681, it was held that such verbal trusts are without force or effect to defeat the rights of third parties under our local statute of frauds,3 and that such agreements must be in writing. Thus the court below was correct in refusing to hold that such a trust was enforceable against Wall.
As to the alternative argument that Welch was Thurm's agent as a matter of law, we rule that such a finding was within the province of the trial judge. Under the Code section, permitting a claimant to intervene, the trial court is instructed to inquire into the claim and to make such orders as may be necessary to protect the claimant's rights. A full hearing was had and as the court ruled against Thurm it evidently felt that the alleged agency relationship did not exist in fact. It was within the trial judge's province to weigh the self-serving testimony of Thurm and Welch against the facts that no written evidence of this alleged agreement existed, or that the auctioneer was never informed that Welch was merely acting as Thurm's agent in this matter.
Affirmed.
The facts in this case are relatively simple. Mrs. Jackson held a promissory note executed by Welch, with an unpaid balance of $590, secured by a duly recorded chattel deed of trust on certain household furniture and furnishings. She turned the note and deed of trust over to Thurm for collection and when the note was in default authorized him to use his discretion in obtaining a settlement. Thurm authorized Welch to sell the furniture and agreed to accept the proceeds in full...
To continue reading
Request your trial
-
Quander v. Dow
...manifested his intent to create verbal trust and complied with the formalities necessary to bring about that result), with Thurm v. Wall, 104 A.2d 835, 836 (D.C.1954) (sustaining refusal to hold putative trust enforceable against tenant's creditor in light of precedent holding that "verbal ......