Cram v. Shackleton

Allen, J. It is conceded that the trustee is chargeable for $4.34, the question here being as to the $175. If the $175 in the trustee’s hands was Shackleton’s money, the trustee is chargeable for that sum; otherwise not. Both Johnson who furnished the money, and Shackleton who deposited it, understood it was Johnson’s. Chesley v. Coombs, 58 N. H. 142. And the trustee, at the time of the deposit, had notice that it was Johnson’s. It was given by Johnson to Shackleton to use for a particular purpose for Johnson’s benefit, and Shackleton’s misappropriation of the money did not any the less make it Johnson’s. The trustee, having notice when he received the money that it was Johnson’s, was liable in equity to repay it to him, at least after satisfying the purposes for which the deposit was made; and be cannot be charged as Shackleton’s trustee. Richards v. Railroad, 44 N. H. 127, 140 ; Leland v. Sabin, 27 N. H. 74. *45 The fact that the claimant of the fund did not appear under the terms imposed and leave granted, does not prevent the discharge of the trustee. The issue between the plaintiff and the trustee remains as if no motion or order for the claimant to appear had ever been made, and the trustee upon that issue can be charged only upon sufficient evidence of his having in his hands the property of the principal defendant. The depositions" of the trustee and other persons were competent evidence upon the trial of the issue (G. L., c. 249, ss. 9, 10), and it has not been shown by that evidence that the trustee is chargeable for the $175. The finding at the trial term that the evidence was not sufficient to charge the trustee, included the finding that the $175 was not the defendant’s money, but Johnson’s; and that finding, unaffected by any question of law, is conclusive of the fact. Trustee charged for $4.34. Carpenter, J., did not sit: the others concurred.