Mann v. Witbeck

By the Court, Parker, J. It is objected that there was no sufficient delivery of the property or change of possession under the assignment as against the execution creditors of the assignor. This objection involves questions of fact, the decision of which is devolved by the statute exclusively upon the jury, and in regard to which the verdict of a jury will not be disturbed, unless clearly and palpably wrong: and when a cause is tried by the [391] judge without a jury, the same rule is applicable. But I think the proof on this subject entirely satisfactory. There was proved to have been an immediate and continued change of possession. The plaintiff was daily at the store, and gave the necessary directions to the clerk and persons employed. The books were kept and bills made out, in the name of the plaintiff as assignee. The assignor remained as clerk of the plaintiff about six weeks, and was then discharged because he had fraudulently retained money for property sold, as alleged by the plaintiff. Andrew Bales, who had been a clerk for the assignor before the assignment, was retained after the assignment, being employed by the assignor, but paid by the plaintiff. Ho kept the keys when the plaintiff was absent, and he and Charles consulted the plaintiff in relation to the business. Charles Bales was insolvent at the time of the assignment, and all the assigned property was insufficient by upwards of $10,000 to pay the liabilities of Charles Bales on which the plaintiff was liable as indorser. All these circumstances seem to me conclusive upon the question of change of possession. But the principal question in this cause arises upon the language of the assignment; the defendant’s counsel claiming that it is fraudulent and void upon its face, because it authorized the assignee “ to employ suitable agents at a reasonable compensation to be paid out of the effects assigned, and generally to adopt such measures in relation to the settlement of the estate as would in his judgment promote the true interests thereof.” The first of these clauses confers no additional authority beyond what the law would give to the assignee. The property, from its peculiar character, could not be disposed of without the assistance of others, and the assignee had the right to pay a reasonable compensation, out of the assigned effects, to those necessarily employed by him for that purpose. (Burrill on Assignments, 205, 442. 8 Dana, 247. 6 Watts & Serg. 300.) But it is said the latter clause above quoted gives to the assignee ■ too wide a discretion in the settlement of the estate. It certainly confers a discretion. It authorizes the adoption of such measures as in his judgment will promote the true interests of the. [392] estate. Shall this be construed to mean a discretion unlimited by the rules of law, or within the legal limits % It seems, to me plainly the latter will be deemed to have been intended. There is ample room for the exercise of discretion within such limits. The language is abundantly satisfied with such a construction, without imputing to the parties a design to sell on credit or do any other illegal act. The law never gives to an instrument, by implication, an unlawful meaning; • nor will it raise an unlawful trust by implication. (Tucker v. Tucker, 1 Salden, 408.) It is a fundamental rule in the construction of an instrument susceptible of two meanings, one lawful and the other not lawful, that the former shall be adopted and the latter rejected. This principle has been recently applied to an assignment, by Mr. Justice Roosevelt, in Bellows v. Partridge, not yet reported. In that case the assignment authorized the assignee, “ as soon as reasonably practicable with due regard to the rightful interests of all the parties concerned, to convert into money by sales either public or private, or by collection as the case may require, or as may in the judgment of I. F. [the assignee] be for the best advantage, all the said real and personal property, &c. and to apply the proceeds, &c. as directed in the assignment.” It was objected that this clause conferred so broad a discretion as to authorize a sale on credit. But the court decided that no such illegal intent would be implied, and the assignment was held valid. In Whitney v. Krows, (11 Barb. 198,) a provision in the assignment authorized the assignees “. to sell and dispose of the property upon such terms and conditions as in their judgment may appear best,” &c. and “ to convert the same into' money,” and the court held it should not be construed as authorizing them to sell on credit. (See also Cunningham v. Freeborn, 1 Edw. Ch. R. 256 ; 11 Wend. 240 ; Burrill on Assignments, 195.) My conclusion therefore is, that the clause objected to does not invalidate the assignment. The next objection is that the paper signed by the plaintiff and dated January 22d, 1850, was part of the assignment, and that it contained a provision for the benefit of the assignor [393] inconsistent with the good faith of the transaction. That paper was dated on the same day the assignment was executed, though the assignment was subsequently altered and re-executed two days after. It is undoubtedly settled that two instruments executed at the same time, and in relation to the same subject matter, may be construed and taken as different parts of the same agreement. (1 Burr. Rep. 107. 1 John, Cas. 91. 1 Paige, 455. 3 Id. 254.) There is no positive proof that these two par pers were executed at the same time, but it is sought to be inferred from the fact that they both bore the same date and relate to the same subject matter. So far as any thing can be inferred from the language of the paper, I should suppose it was the result of a subsequent suggestion, and was signed afterwards on the same day. It alludes to the assignment as a past and not as a present transaction. Though executed on the same day it does not necessarily follow that it was executed at the same time, and was a part of the same transaction. Whether this paper is invalid on its face, for want of a consideration, is immaterial, as between these parties. That is a matter between the parties to the paper. If it was no part of the assignment it cannot be called in to invalidate it, and it is therefore unnecessary to inquire whether the support of the assignor’s .family would be more than a fair equivalent for his services. [Albany General Term, December 5, 1853. Watson, Parker and Wright, Justices.] No objection- appears by the bill of exceptions to have been made, at the circuit, that an inventory was not annexed to the assignment. Nor does it appear that such was the fact. No evidence is returned except such as is applicable to the exceptions taken. I have examined all the points which were made on the trial, and argued at the bar, and I think none of them are available to invalidate the plaintiff’s claim to the property, under the assignment. The motion for a new trial must be denied.