Tripler v. Olcott & Lord

The Chancellor. This case was brought to adiearing on the part of the defendant Olcott, and we are only to discuss the case as it regards him. Two of the plaintiffs (Tripler &f Craig,) have not shown any right or title whatever to an account, for they have not proved the assignment charged in the bill to have been made by Fanning to them on the 18th of December, 1813. This assignment is the only foundation of their claim, and it is not admitted by the answer. We must recur to the resulting trust of Fanning, as the only existing right shown on the part of the plaintiffs. The bill of sale from Fanning to Lord, was absolute upon its face, and no resulting trust appears. Nor is there proof of the express agreement charged in the bill. The evidence, that the bill of sale was intended to be qualified and not absolute, appears from the two letters of Lord to Olcott, of the 29th of December, 1812, and the 16th of August 1813. In the one, he says, that the bill of sale arose from the failure of Fanning, and others, and was for the purpose of paying custom-house bonds, and to save friends; and in the other he states, that he took the ship and freight as security for about 6,000 dollars, and to cover a demand of one Carey for 1,500 dollars-. These were. [478] representations entirely contrary to the statement in the bill of the agreement between Fanning and Lord, made on the delivery of the bill of sale. Nor do the two accounts given in the letters correspond with each other, and they were mentioned to Olcott rather incidentally, and without any full, precise, and satisfactory explanation of the trust: They were not intended to form any rule or guide to OlcoWs conduct, and he could only look to Lord, as the owner. The authentic evidence which he had of any right or title in the property, xvas the bill of sale and the letter of attorney; and he could not, and did not, recognise any other title, interest, or authority. A resulting trust, mentioned in this incidental and obscure manner, and especially when attended with the clear title and positive acts and instructions of Lord as oxvner, did not probably, attract any attention from Olcott; and he says, in his answer, that he considered Lord as the sole owner, and as having the exclusive interest, and that he would not have accepted of any agency for any other person, distinct from that of master of the ship. On his return to the United States, in October, 1814, he duly accounts to and with Lord; and the question is, whether he is bound to account also to Fanning. It does not appear to me, that Olcott could with safety or propriety, have dealt xvith any other person than Lord. He had no business of concern with the dealings between Lord and Fanning, and the loose hints communicated to him by Lord vvere of no use. It would be equally dangerous and inconvenient, in the business and affairs of the xvorld, to deny, that Olcott could not definitively and safely account with Lord, under the circumstances of this, case. If there had been fraud and collusion, charged, and proved between him and Lord, in the settlement, to the prejudice of the known rights of others, it would have presented a very different question. But no such allegation or proof exists; Fanning must look to Lord, and cannot look bey ond [479] Mm, for an account of the management and proceeds of the property assigned to him in trust. It is stated to have been held in Pollard v. Downes, (2 Ch. Cas. 121.) that where a trustee made a letter attorney to S. to manage and receive the rents and profits of. land, and S. afterwards accounted to the trustee for his agency, he was, after the death of the trustee, and on a bill by the cestuy que trust, directed to account to him. That case is so destitute of all facts and circumstances requisite to a clear' understanding of the principle and the application, that it can scarcely be regarded as an authority. It may be, that there was a collusion between the trustee and the agent, or that the agent had notice from the principal not to account with the trustee, or that the trust had expired at the time. It is impossible to be maintained, that if an agent duly and fairly accounts with his, immediate and authorized principal, that he is bound, in all cases, to account over again to the person standing behind his immediate principal. This would be a doctrine not to be endured; there must have been something in the case cited which does not now appear, and which gave if a special direction. Lord Eldon, in Beaumont v. Boultbee, (7 Vesey, 605. 610. 617.) laid down this rule, that an account settled between an under and an upper agent, without vouchers, and upon mere confidence, was not to be considered as settled against the. principal, without allowing him the liberty to surcharge and falsify those accounts. But, in that case, it appeared that the under steward, (as he was termed,) was employed both by the upper steward and the principal, and the liberty given to the principal went no farther than to surcharge and falsify ; and that was founded on the extraordinary and unusual mode of accounting which had been adopted in that case. Under such checks and limitations, there can be no doubt. that the party ought to account again to the person who . has the ultimate interest. But when no special circum [480] stances appear, and there is no fraud, then I apprehend the general rule to be otherwise, and that it was truly de - ' clared in Clavering’s case. (Prec. in Ch. 535.) The plaintiff in .that case was entitled to several collieries of value, and his guardians or trustees, during his minority, had appointed the defendant an agent to manage the same, with a salary which they had increased as they saw occasion. He passed his accounts regularly with the trustees or guardians, every half year; and they, from time to time passed and allowed those accounts. The plaintiff being of age, filed his bill, not only against the trustees or guardians, but the agent, to have a general account. The agent pleaded the accounts themselves, and the plea was held good, for he was but a servant to the trustees; and as they had authority, to employ him, they had the same to discharge him and allow his accounts, and he had nothing at all to do with the plaintiff; that if it were otherwise, none would ever be concerned in an infant’s affairs, and the plaintiff would suffer no sort of mischief by it; for he was at full liberty to go through the whole account against the guardians or trustees, and they were only and immediately responsible to him, and would be so for the embezzlements of the servants they employed. In the cases referred to, the character of the trustee, and the relationship between him and the principal, was, no doubt, distinctly known and declared. But in the present case, Fanning had clothed Lord with the absolute legal title, and held him out to the world, and suffered him to deal with others, as the real and absolute owner. Upon every just and safe principle, the settlement between Olcott and Lord ought to be absolute; it ought not to be opened by Fanning; nor the defendant Olcott called on to account de novo with him, except upon the ground of fraud and collusion, and that is not the ground taken in this case. [481] I am, accordingly, of opinion, that the bill, as to the defendant Olcott, be dismissed, with costs. Bill dismissed, accordingly.