Walcott v. Riohman

• Decision Date: 16 November 1900
• Parties: WALCOTT et al. v. RIOHMAN.
• Court: Maine Supreme Court

47 A. 901

94 Me. 364

WALCOTT et al.

v. RIOHMAN.

Supreme Judicial Court of Maine.

Nov. 16, 1900.

(Official.)

Exceptions from supreme judicial court, Penobscot county.

Action by James C. Walcott and others against Charles F. Richman. Charles W. Morse was substituted as trustee. Emeline W. Richman interposed a claim. Judgment for plaintiff, and claimant brings exceptions. Exceptions sustained.

Trustee process. At a hearing on the question as to whether or not the alleged trustee should be charged, the presiding justice adjudged the trustee chargeable for the funds in his hands. To this adjudication the claimant of the funds took exceptions, and asked that the whole case be considered on the exceptions. The whole testimony, the disclosure of the trustee, and his examination were made a part of the exceptions, accompanied with a written stipulation of all the parties submitting the question to the decision of the law court.

Argued before EMERY, WHITEHOUSE, SAVAGE, FOGLER, and POWERS, JJ.

J. D. Rice, for plaintiffs.

P. H. Gillin, for trustee. A. J. Merrill, for claimant.

EMERY, J. At the return term of this trustee process, October, 1897, Mr. Morse, the trustee, made his disclosure in due form under oath, in which he stated that at the date of the service of the process upon him he had in his hands $1,373.75 due Richman, the principal defendant, for horses sold by Richman to him. He did not then disclose that any other person claimed the fund. The case thereafter lay dormant until the January term, 1900, when it was brought up, and, according to the bill of exceptions, "at a hearing on the question as to whether or not the alleged trustee should be charged, the presiding justice adjudged the trustee chargeable for the funds in his hands." The only issue regularly formed in the case was between the plaintiff and the trustee, and upon that issue between them the ruling was, of course, right, and the trustee did not except.

One Emeline W. Richman, however, did file a bill of exceptions as claimant of the funds disclosed, and this bill of exceptions the presiding justice allowed. So far as the record before us shows, Mrs. Richman is not in a position to have exceptions allowed or considered. Her appearance as claimant was entered upon the docket by counsel at some time, but it does not appear when. She did not file any petition to be "admitted as a party to the suit so far as respects her title to the goods, effects, or credits in question." She did not file any pleadings or allegations of fact, nor take any steps to form an issue between her and the plaintiff upon which the court, with or without a jury, could render a judgment which should bind and protect them and the trustee. Her exceptions, therefore, should, in strictness, be dismissed without further consideration. Rev. St. c. 86, § 32; Bunker v. Gilmore, 40 Me. 88; Hardy v. Colby, 42 Me. 381; Dalton v. Dalton, 48 Me. 42; Thompson v. Reed, 77 Me. 425, 1 Atl. 241.

All the three parties, however, have signed and filed a written stipulation submitting to the court the question between the plaintiff and the claimant as to which of them is entitled to the fund disclosed by the trustee as in his hands, and agreeing to be bound by its judgment thereon. We venture, therefore, to consider what the evidence proves upon that question.

The undisputed evidence shows these facts: Mr. Morse (the trustee), a horse dealer at Bangor, had often bought horses from Mr. Charles F. Richman (the principal defendant), a horse dealer at East Buffalo, N. Y. May 6, 1897, Richman wrote Morse proposing to sell him a car load of horses on 30 days' time. May 9th following, Morse telegraphed Richman as follows: "Ship sixteen or eighteen, if you can ship them worth the money, good big stock, one pair extra drivers. Make thirty days' draft Answer." May 10th Richman shipped a car load of 20 horses to Morse at Bangor, and the same day drew his draft on him against the horses so shipped, on 30 days, for $1,746, payable to his (Richman's) own order. This draft he indorsed and delivered to Jones Bros, in part payment of his note held by them. Mrs. Emeline W. Richman, the claimant, was Richman's surety on this note, and paid it, and Jones Bros, thereupon indorsed and transferred the draft to her.

The horses arrived at Bangor on the evening of May 13th, and were the same evening unloaded from the car by Morse, and placed in his barn. The next morning—May 14th— this trustee process was served upon Morse, whereupon he telegraphed Richman, the consignor, as follows: "Have been trusteed today action against you. Court makes me hold funds. Can't honor draft See letter." A few days later he sold the horses. Before the return term of the trustee process he was notified that Mrs. Richman held the draft, and upon it claimed the proceeds of the horses. As already stated, however, he made no mention of this in his disclosure, but Mrs. Richman has voluntarily appeared and submitted her claim to the judgment of the court.

Upon the foregoing facts there can be no question that Mrs. Richman is entitled to the fund; that fund being the proceeds of the horses, against which the draft held by her was drawn by the consignor at the time of the shipment, and in pursuance of the consignee's direction at the time of the purchase. The draft drawn and negotiated under such circumstances was, at least, an equitable assignment of the fund, which would be operative against a subsequent attachment by trustee process. Robbins v. Bacon, 3 Me. 346; Littlefield v. Smith, 17 Me. 327; Simpson v. Bibber, 59 Me. 196; Bank v. McLoon, 73 Me. 498; Jenness v. Wharff, ...