Williamson v. Dickens

• Decision Date: 31 December 1844
• Citation: Williamson v. Dickens, 5 Ired. 259, 27 N.C. 259 (N.C. 1844)
• Court: North Carolina Supreme Court
• Parties: ROBERT P. WILLIAMSON et al. v. STEPHEN M. DICKENS.

5 Ired. 259

27 N.C. 259

ROBERT P. WILLIAMSON et al.

v.STEPHEN M. DICKENS.

Supreme Court of North Carolina.

December Term, 1844.

The provision in the bankrupt law, which prevents a debtor from being discharged under the commission of bankruptcy when the debt is of a fiduciary character, extends only to special trusts, but does not extend to implied trusts, such as those of agents, factors, &c.

When a creditor has a claim which he might enforce, either by an action of assumpsit or in tort, if he sues in tort his action shall not be barred by a discharge under the bankrupt law.

The creditor is not barred by this discharge, when, although hemight have proved his claim under the commission, he was not bound to do so.

In every such case, the form of the action brought is decisive of the question, whether the discharge is a good bar or not.

Appeal from the Superior Court of Law of Person County, at the Fall Term, 1844, his Honor Judge PEARSON presiding.

This was an action on the case, in which the plaintiffs declared in tort for breach of contract, and also in trover for the conversion of certain bonds, notes and attorneys' receipts, which the plaintiffs had placed in the hands of the defendant, to be by him collected for them.The breaches assigned in the first count were, 1st, failure to use due diligence in collecting; 2dly, failure to pay over moneys collected.The defendant relied upon the pleas of the general issue, and his certificate of discharge under the bankrupt law, which he obtained in January, 1843.The facts, as disclosed upon the trial, were as follows: In 1836, the plaintiffs placed in the hands of the defendant the bonds, notes and attorneys' receipts referred to, which were then due to the estate of the plaintiffs' intestate from persons living in the State of Alabama, which bonds, notes, &c., by his receipt for the same, he agreed to collect or return.The defendant proceeded to the State of Alabama in the autumn of 1836.While there, he collected a part of the said bonds, &c., and left a large residue in the hands of his brotherRobert M. Dickens, who was a partner in trade in that country with the defendant and others.Of the notes and bonds so left in his hands, Robert M. Dickens by his deposition proves, that he collected a large amount, which in part he paid over to the plaintiffs' agent; but leaving a balance unaccounted for by him to the plaintiffs, of about $900.It further appeared, that this balance of $900 was used by Robert Dickens for the benefit of the firm of Dickens, Webb, & Co., of which the defendant, as above stated, was a member.And, upon the failure of the said firm, which took place in 1839, a general assignment of the effects of the firm was made for the benefit of their creditors, and this balance of $900 was, by a schedule annexed to the said assignment, admitted to be due the plaintiffs for claims left in the hands of Dickens, Webb, & Co. for collection.It was also proved, that the assets of the said firm were not sufficient to pay the said sum of $900.The plaintiffs also proved a demand before action brought.

On behalf of the defendant, the testimony of John A. Hogan was introduced.Mr. Hogan stated, that in February or March, 1837, at the request of one of the plaintiffs, he had an interview with Mr. Robert Dickens in regard to the funds above mentioned.In that interview, Mr. Robert Dickens told him that he, Dickens, would visit North Carolina in the course of the ensuing summer, and would adjust the matters in regard to these funds with the plaintiffs and the defendant.Mr. Hogan further stated that in the course of the winter of 1838, he had another interview with Robert Dickens in Alabama, in relation to these funds, and Dickens then informed him that a portion of the funds was in the hands of Col. Irving (an Attorney) and that he, Hogan, could call on Mr. Irving and obtain them.Mr. Hogan accordingly obtained from Mr. Irving the amount of $2175, or thereabouts.Mr. Hogan further stated that Mr. Robert Dickens, previously to his obtaining this sum from Irving, informed him (Hogan) that the funds, which were to be collected by Stephen Dickens for the plaintiffs, were collected or were considered by him (Robert Dickens) as collected; that one of the debts was not actually collected, but was due to the plaintiffs from his overseer, and that he would, at the end of the year, retain this debt out of the overseer's wages.The amount of this debt was four or five hundred dollars; and soon after the first of January, 1839, Mr. R. Dickens sent Mr. Hogan a draft for five hundred dollars, which was duly paid on presentment.Mr. Hogan further testified, that Mr. R. Dickens said, that he ought to pay the funds he had collected to the plaintiffs, but that he had no funds at the time, which were available for that purpose; that his northern debts were pressing him, and that the payment he could make to Mr. Hogan depended upon what arrangement he could enter into as to his northern debts, and what collections he could make as to the debts due to the firm.In the first interview between Hogan and R. Dickens, the latter spoke of having made remittances to the defendant, and stated that what he owed the plaintiffs would depend upon the application the defendant had made of those remittances.Mr. Hogan further stated, that when the plaintiff, Williamson, first requested him to give his attention to these matters in Alabama, he stated, after shewing Mr. Stephen Dickens' receipt, that Stephen Dickens had placed the debts mentioned in the receipt, in the hands of Robert Dickens for collection.In one of his interviews with Robert Dickens, Mr. Hogan told him that his brother Stephen would probably be sued by the plaintiffs for the debts he had to collect.To this suggestion R. Dickens replied, that he regretted, or that his brother ought not to be sued, for that he, Robert, had the funds in his hands.The plaintiff, Williamson, authorized Hogan to treat with Mr. Robert Dickens in regard to these debts.

On the part of the plaintiffs it was contended, that they had made out their case against the defendant, and had a right to recover, notwithstanding his discharge in bankruptcy; 1st, because the defendant, by his undertaking to collect as the agent of the plaintiffs, established between himself and the plaintiffs a fiduciary relation, which, under the bankrupt law itself, precluded him from the benefit of his discharge: 2ndly.The plaintiffs having declared in tort, as they had a right to do under the facts of this case, the discharge in bankruptcy was no bar to the action.But his Honor having intimated an opinion against the right of the plaintiffs to maintain their action, the plaintiffs submitted to a non-suit and appealed to the Supreme Court.

Kerr and Venable for the plaintiffs .

E. G. Reade and Iredell for the defendant.

NASH, J.

The plaintiffs declaration contains two counts, one in trover and the other in tort, for breach of contract.The case was, the plaintiffs put into the hands of the defendant a number of notes and bonds which they held upon sundry persons in Alabama, and in his receipt, the defendant bound himself to collect or return them.The defendant being...