Cabaniss v. Ponder

Jackson, Justice. The town authorities of Forsyth brought a bill in equity .against Pye & Son, bankers in that town, to subject certain bonds to a claim of the town ; the bonds were the .remnant of bonds issued by the town authorities under .an act of the legislature for the advancement of its educational interests, remaining in the vault of the bank after it broke and the bankers became insolvent, amounting to .some $4.900.00. Pye & Son went into bankruptcy, and the plaintiffs in error were appointed their assignees and made defendants to- the bill, representing the depositors .and general creditors of the bank; and the contest is, whether the town authorities are entitled to receive these bonds to be delivered up and canceled, or the assignees to ■•take them for distribution among the creditors of Pye & .Son. That question turns on a construction of the con [137] tract or obligation entered into by the town authorities and Pye & Son. The legislature authorized the issue of bonds by the town, and the corporation contracted with Pye & Son for and in consideration of the use of $7,500,00 worth of the bonds to keep good $7,500.00 worth of other like bonds; and when $7,500.00 were redeemed by the town, then the other $7,500.00 were to be delivered up to be canceled. The bonds bore interest at 2 per cent, per annum, and the bankers had the use of their half without interest. A similar contract was made with another bankinghouse in Forsyth for alike amount— the entire issue being $30,000,00, and the use of half being given to the two banks to keep the other half good among the people of the town and those interested therein. The ■contract is set out in full in the record, but the substance of it is about as above written. On the trial of the case the jury found for the town, .and the assignees made a motion for a new trial, which was overruled, and they excepted. The controlling question is, whether the contract makes such a case as in equity, under the facts in the record, will ■entitle the complainants to have the bonds left in the hands of Pye & Son returned to them to be canceled ? 1. We cannot hold that the transaction makes technically what is called a loan for use; because such a loan is under ■ our Code “gratuitous,” and “ at the will of thp grantor.” ■Code, §2126. But nevertheless, we think it created a trust whereby Pye & Son obligated themselves for a valuable consideration, to-wit, the use of bonds of the nominal value of $7,500.00, to redeem when presented at their ■ counters other $7,500.00 in value of the bonds, and keep them circulating at par. This they have failed to do, and ■ can never do, because-they are wholly insolvent. The object of the bill is to lay hold on such of the bonds as .are in the hands of Pye & Son to-have them canceled, one of the conditions of the contract being that when the town had redeemed one-half, the other half should be de [138] livered up for that purpose. Such had been done by the town authorities when the case was tried. It is true that when the bill was filed, the time had not arrived for the redemption of one-half by the town, but no complaint had been made by the bankers of the neglect of the town in such form as to bind the town, or to offer to rescind and annul the contract. When it became apparent that Pye & Son could not use the goods entrusted to them by the town for the purpose for which these bonds were entrusted, the town had the right ro rescind the contract and to recover in equity the bonds which remained against Pye & Son,and consequently against general creditors, who stood in their shoes. 2. It is immaterial that these $4,900.00 of bonds were not proven to be part of the identical $7,500.00 entrusted to Pye & Son for their own use. They could not, from the nature of the undertaking, keep the identical bonds belonging originally to themselves, and for their use ; for the contract contemplated the use of all the bonds as a sort of circulation in the town, and Pye & Son had the right to put them out for that purpose. The spirit of the agreement is to return the same in kind. 3. In regard to the over issue of bonds, and the complaint of Pye & Son that that relieved them, it seems a sufficient reply to say that it was made to .prepare and put out the entire issue, and that they received their part with knowledge thereof, and went on with the business regardless of that fact. Whilst therefore we cannot reconcile this case with our Code, as making a loan for use, yet it does make a quasi bailment in the broader sense of the definition thereof in §2058 of the Code, which declares:. “A bailment is a delivery of goods or property for the execution of a special object, beneficial either to the bailor or bailee, or both; and upon a contract, expressed or implied, to cariy out this object, and dispose of the property in conformity with the purpose of the trust.” As to the particular sort [139] of bailment, we think it partakes more of the nature of a contract for hiring than a mere loan. For the contract is that whereby “ one person grants to another the enjoyment of a thing, or the use of the labor and industry, either of himself or servant, during a certain time for a stipulated compensation.” Code, §2085. At all events, it is a trust—the trust has failed by the insolvency and bankruptcy of the trustee, and the cestui que trust has the right to get back his own goods, which are withholden and attempted to be converted to pay the trustee’s debts. Therefore, we think the verdict and judgment substantially right, and there being no special depositors of these bonds, that the equity of the town entitles it to the recovery and cancellation of the bonds. Judgment affirmed.