Riggins v. Boyd Manufacturing Co.

Fish, P. J. The trust involved in this case was construed in Riggins v. Adair, 105 Ga. 727, where it was held that the trust created is executory, at least during the lifetime of Mrs. Rig-gins, and that the property of the trust estate is liable for debts created by the trustee for the benefit of such estate. In that case the trust estate was held to be bound for a debt contracted for fertilizers bought for its use. The evidence for the plaintiff, in the present case, made out a clear case of liability on the part of the trust estate for the amount represented by the note sued on, and, unanswered, demanded a verdict in favor of the plaintiff for the full amount. The defendant sought to meet this by evidence which the court ruled out, and the sole question which we are to decide is whether the court committed a reversible error in ruling out this evidence; for there is no exception to the direction of a verdict by the court or to the particular verdict which was directed. Whether the court was right or wrong in the ruling complained of is, in the view which we take of the case, immaterial. If this evidence had remained in, the jury could not have lawfully found in favor of the defendant generally, nor reduced the amount of the plaintiff’s proved claim. . From the evidence in question it appeared “ that the note sued upon was a renewal note for the balance of the $670.50 note given May 29, 1900.” This last-mentioned note showed that it was given by the defendant as trustee, which fact he neither denied in his answer nor by his testimony. He did testify that at the time he bought the fertilizers for which this note was given, nothing was said about his buying them as trustee. But, on the other hand, he failed to state that anything was said about his buying them, [235] or any part of them, individually. How then did he buy them ? Presumably, from the way he signed the note, he purchased them' as trustee. He testified that he signed the original note as trus-* tee, because “ they ” asked him to do that, a request which was both natural and proper if he bought the fertilizers for the trust estate, and which when made, in the absence of anything to the contrary, put him upon notice that the intention of the seller was to sell the goods to him in his capacity as trustee. He said nothing to the seller to indicate that he was not purchasing all of the fertilizers for tire trust estate, and when he was asked to sign the note as trustee he did so without explanation or objection. If he did not intend to contract in his capacity as trustee for the whole of the fertilizers which he purchased, the time for him to have made this known was when he was asked to do so. As we have already intimated, when he bought the fertilizers for the purchase-price of which the original note was given, and signed such note in his capacity as trustee, the presumption was that he purchased the goods in his representative and not in his individual capacity. This presumption was not overcome by the mere statement “that at the time the guano was bought nothing was said about bis buying it as trustee.” When he signed the note in his representative capacity, something was said, or rather declared, in writing, as to the capacity in which he purchased the fertilizers. His statement- that he did this because the seller asked him to do it is perfectly consistent with the idea that he bought the whole o"f the goods as trustee, while the manner in which he signed the note is inconsistent with the idea that he did not so purchase them all. He gave no explanation whatever as to why he signed the renewal note as trustee, after having, as he testified, paid all that,the estate owed for the fertilizers. He -testified “ that he bought a part of the guano for the trust estate, and part of it he bought for sale,” but he did not testify that this was understood between him and the seller, or that the latter knew that such was the fact; and he failed to state what part he bought for the trust estate, or how much he purchased for himself, nor did he state what the contract price of the guano or the contract price of the acid was. How, then, was it possible for a jury to find, either wholly or partially, in favor of his plea ? Granting that it was permissible for him, after signing [236] both the original and the renewal note as trustee, to show that, at the time of the purchase, his undisclosed intention was to buy a> part of the goods for - the trust estate and a part for himself individually, it was still incumbent upon him, in order to overcome, either in whole or in part, the case made by the evidence for the plaintiff, to show what he bought for the trust estate and what he purchased for himself, and what the contract price was. This he utterly failed to do. He did testify that he used ten tons and eight sacks of the guano on the trust estate and used the seven and one half tons of acid, and sold three tons of the guano, but this did not show that the three tons of guano which he sold were not bought for the trust estate, and the seller was not bound to follow him up and see that he used all the fertilizers for the trust estate. Even if he had shown what part of the fertilizers he' purchased for the trust estate and what part he bought for himself, there was no'way of fixing the amount to be deducted from the plaintiff’s proved claim against him as trustee, for the reason that he failed to show what the contract price of the guano or the contract price of the acid was. The testimony in reference to the market value of the fertilizers and the market value of the cotton paid on the original note was wholly irrelevant and immaterial. The plaintiff was not suing upon a quantum meruit, but for a balance due under a contract of sale, and the price of the fertilizers was fixed by the contract between the parties, and could not be altered by proof of their market value at the time of purchase. This would be true even if the sale had been for cash, to which market value presumably refers; whereas the sale in question was upon a credit. The defendant could not go behind the renewal note for the purpose of showing- the market value of the cotton which he as trustee had delivered'to the plaintiff in part payment of the original note. For clearly the aggregate amount*paid in cotton on the old note must have beeu agreed upon by the parties when the new note was given for the balance due. The giving of the renewal note was a distinct and clear recognition of the amount still due after the cotton payments had been made on the old note, and, in the absence of any proof as to fraud, accident, or mistake in the settlement evidenced by this note, no evidence as to the value of the cotton paid on the old note was relevant. As [237] the evidence for the plaintiff demanded a verdict in its favor for the full .amount of the note sued on, and the evidence offered by the defendant would .not have authorized the jury to find any other verdict, the court committed no error requiring a reversal of the judgment below, in the ruling complained of. Judgment affirmed, All the Justices conctor, except Simmons, C. J., absent.