Webster & Atlas Nat. Bank v. George A. Fuller & Sons Co.
Decision Date | 25 June 1931 |
Citation | 155 A. 697 |
Parties | WEBSTER & ATLAS NAT. BANK v. GEORGE A. FULLER & SONS CO. et al. SAME v. FULLER et al. |
Court | New Hampshire Supreme Court |
Exceptions from Superior Court, Belknap and Strafford Counties; Matthews, Judge.
Trustee process by Webster & Atlas National Bank against George A. Fuller & Sons Company and others, defendants, Farmington National Bank and others, trustees, and Edith Fuller, claimant; and creditor's bill by Webster & Atlas National Bank against Alfred E. Fuller and others. To review adverse decrees and orders in both actions, plaintiff brings exceptions.
Exceptions overruled in first case, and sustained in second case.
I. Trustee process. The defendants were defaulted, and the issues tried were as to the rights of the parties to a fund deposited in the Farmington National Bank by Edith Fuller, the claimant. The plaintiff claimed that the fund was the property of the defendant Alfred E. Fuller, and that it was transferred to his wife Edith in fraud of creditors. The court (Matthews, J.) found that the transfer was made in good faith, without any fraudulent purpose, and ordered that the trustees be discharged, except as to a small item standing to Alfred's credit in the Farmington Bank. The plaintiff moved that the order be set aside, and excepted to a denial of the motion.
The plaintiff then filed a motion for a new trial on the ground of newly discovered evidence to the effect that Alfred was insolvent at the time of the transfer to his wife. A hearing was had and the motion was denied, subject to exception. The plaintiff then requested that the facts be found and the case transferred.
The facts were found to be as before stated, and that at the time of the transfer Alfred was an accommodation indorser upon notes of the Fuller Company to a large amount, and that from time to time thereafter these notes were taken up and new ones given in their places. The notes sued on were all given after the transfer to Mrs. Fuller. These transactions took place in Massachusetts, and the court found that the new notes were taken in payment of the earlier ones. Upon these findings the motion for a new trial was denied. Other facts are stated in the opinion.
II. Creditors' bill, brought after all the above recited proceedings had taken place, and alleging that Alfred was insolvent at the time of the transfer to his wife and is now in bankruptcy, and praying that the fund be decreed to be his property, subject to levy of the plaintiff's execution.
The defendant answered that the issues presented had been heard and determined in the trustee action. The court (Matthews, J.) so ruled and ordered the bill dismissed. The plaintiff excepted.
Conrad E. Snow, of Rochester, for plaintiff.
Lucier & Lucier, Karl E. Dowd, and Alvin A. Lucier, all of Nashua, for Edith H. Fuller.
I. In the proceedings seeking to charge the trustees in the original action it was incumbent upon the plaintiff to prove either a claim recoverable by the plaintiff from the trustee, or a transfer of the defendant's property which was fraudulent in fact. A mere fraud in law is not sufficient. There must be "fraud in the intent." Corning v. Records, 69 N. H. 390, 396, 46 A. 462, 76 Am. St. Rep. 178, and cases cited. And this fraudulent intent must be participated in by the trustee (Clough v. Company, 77 N. H. 408, 92 A. 803), or by the claimant, if the issue is between him and the plaintiff. Fradd v. Charon, 69 N. H. 189, 44 A. 910. As against them, the plaintiff "cannot raise the question of fraud in law" by invoking the trustee process. Dole v. Farwell, 72 N. H. 183, 55 A. 553.
As there was no claim of fraud upon the part of the bank, it could be charged only upon one of two grounds. If it had been made to appear that the defendant could have recovered the fund from the bank because it was his property in fact, though held in the name of his wife, the bank might have been charged. This was the theory upon which the plaintiff originally tried its case. The adverse finding upon this issue of fact disposed of any such claim of accountability.
If fraud in fact, participated in by the wife, had been shown, her position as claimant of the fund in the bank might have been defeated, or she might have been charged as trustee for the fund she fraudulently received. The court therefore properly tried in that proceeding the issue of fraud in fact. Having found that there was no such fraud, the legal conclusions followed. She was entitled to be discharged as trustee, and the bank was to be discharged, as to this fund.
The motion for a further hearing because of newly discovered evidence presented no issue properly triable in that case. The allegations of the motion relate solely to a fraud which the law implies because of transfers made by insolvents, or those about to become insolvent. As before pointed out, if the plaintiff should prevail upon the issue it thus sought to try, it would not have ground for charging either of the trustees. The motion was properly denied.
The motion to set aside the order discharging the trustees could be sustained only upon grounds apparent upon the special findings. Questions which might have been, but were not, raised during the trial are not open. Bennett v. Larose, 82 N. H. 443, 136 A. 254, and cases cited; Hould v. Company, 83 N. H. 474, 144 A. 261. Questions of inconsistency between the special findings and the general one, or of the sufficiency of special findings to support a general one purporting to be based upon them, are open for consideration. Hatch v. Hillgrove, 83 N.H. 91, 98, 138 A. 428, 139 A. 366.
The only error claimed in the available aspects of the case is that already considered and decided adversely to the plaintiff's contention. There was no error of law in the denial of this motion.
II. After the proceedings in the suit at law before stated had all been taken, the plaintiff filed a creditor's bill against the Fullers and the Farmington Bank, seeking to reach and apply the fund in question upon the judgment to which it was entitled, but which had not been entered up. The defendants answered that the issue had been decided in the suit at law. The court so ruled, and dismissed the bill.
Apparently the defendants' claim is that this is a second suit for the same cause of action, and that the defendants had judgment in the former suit. One answer to this is that the former suit had not gone to judgment, nor was it in order for judgment, as to the liability of the trustee. If the claim is that there is a prior suit pending between the same parties for the same cause of action, it is answered by what has already been said as to the inadmissibility of the issue of fraud in law in the trustee suit. In each proceeding the plaintiff seeks to reach the fund in satisfaction of its debt. But in one suit it can, while in the other it cannot, raise the issue of fraud in law. If one mistakenly sues in trover, judgment against him for that reason is not a bar to his subsequent and proper suit for trespass. Kittredge v. Holt, 58 N. H. 191.
If the design was to plead an estoppel by judgment as to certain facts, rather than a judgment barring the action (Metcalf v. Gilmore, 63 N. H. 174, 189), the same difficulty arises that the prior suit is still pending; and there is the further answer that the facts alleged were not matters put in...
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