White v. Fernald-Woodward Co.

• Decision Date: 01 July 1910
• Citation: 75 N.H. 504,77 A. 401
• Court: New Hampshire Supreme Court
• Parties: WHITE v. FERNALD-WOODWARD CO. et al.

77 A. 401

75 N.H. 504

WHITE

v. FERNALD-WOODWARD CO. et al.

Supreme Court of New Hampshire. Coos.

July 1, 1910.

Transferred from Superior Court, Coos County; Chamberlin, Judge.

Foreign attachment by Paul White against the Fernald-Woodward Company and others and Charles R. Bartlett, claimant. Transferred from superior court on plaintiff's bill of exceptions. Exception overruled.

The principal defendants are copartners; Woodward hereinafter mentioned being one of the members of the firm. The trustees are the Burbank Company and the Orient Insurance Company. May 23, 1907, Woodward had a claim against the Burbank Company for $6,000, evidenced by a promissory note of that date. The note was secured by a pledge of shares of the capital stock of the Burbank Company, which proved to be worthless, and by a verbal agreement that the company's stock in trade should be kept insured for Woodward's benefit. February 4. 1908, the Burbank Company's property was destroyed by fire, and three days later the corporation gave Woodward an order upon the Orient Insurance Company for the payment of the insurance money to him, the amount collected thereon to be applied in part payment of the note for $6,000. February 13, 1908, the insurers accepted the order, and a receiver appointed by the court has in hands $3,060.84 collected thereon. When the order upon the insurance company was given to Woodward, the Burbank Company's note for $6,000 was held by the claimant Bartlett; it having been delivered to him by Woodward in October, 1907, as security for the latter's indebtedness upon certain notes in exchange for other collateral then surrendered by Bartlett. At the date of adjudication, $1,948.76 was due Bartlett upon Woodward's debt for which the Burbank Company's note was pledged. Upon the foregoing facts a decree was made directing the receiver to pay out of the fund in his hands the sum of $1,948.76 to the claimant, and the plaintiff tendered a bill of exceptions.

Libby & Coulomhe, for plaintiff.

Rich & Marble and Drew, Shurtleff & Morris, for claimant.

PARSONS, C. J. The liability of the Orient Insurance Company, trustee, to the defendant Woodward, existed only through the order given by the Burbank Company aud accepted by the insurance company. The consideration of the order was the indebtedness of the Burbank Company upon the $6,000 note upon which the proceeds of the order were to be applied. The order therefore was a provision made by the signers of the note for its payment. Their stock is stated to be worthless, and it could be found that they are insolvent. Prior to the giving of the order, Woodward had pledged the $6,000 note to the claimant, Bartlett. He, as the creditor of an insolvent debtor, may in equity avail himself of any subsisting provision made by his debtor for the payment of the debt. Hunt v. Association, 68 N. H. 305, 308, 38 Atl. 145, 38 L. R, A. 514, 73 Am. St. Rep. 602; Barton v. Croydon, 63 N. H. 417; Holt v. Bank, 62 N. H. 551; Keeno, etc., Bank v. Herrick, 62 N. H. 174. Trustee process is an equitable proceeding. Roberts v....