Reynolds v. Cridge

Opinion, Mr. Justice Mitchell: The first assignment of error not being according to rule, neither the paper itself, nor the evidence on which it was admitted as a copy, being set out, we must treat it as abandoned. The offers in the second and third assignments were cer [194] tainly relevant on the subject of the expenses incurred by defendant in saving to the collaterals a large part if not the whole value they had at the time of the alleged conversion. It appears from all the evidence, and especially that of Judge Magee, that the road was generally considered worthless, and that the amount realized for its stock and property in 1881 was largely, if not entirely, based on the reconstruction, by means of defendant’s advances, after the flood of 1880. It would seem apparent that the value of plaintiffs’ bonds must have been enhanced by the same cause, and plaintiffs should in equity contribute their ratable proportion to the expenditure which produced such result. Whether the costs of defending against the contractor’s claim in the suit of April, 1877, were a proper charge against the bonds is not so clear, as we do not understand the offer in the second assignment to be to show that a sale under a judgment in that suit would in fact divest the lien of the mortgage and bonds, but only that there was ground to apprehend that it would do so. The witness was certainly not competent to prove by parol the object or the legal effect of that suit, but a reasonable apprehension of danger may be sufficient to justify a trustee in incurring expenses to preserve the trust property, though it turn out that the danger was not actual. The validity of the charge for such expenditure must be determined by the circumstances as they appeared at the time, and these the defendant was entitled to show. The offer in the second assignment was also relevant and competent on the question of the abandonment of plaintiffs’ interest in the bonds. That an executor may abandon property pledged, or subject to assessment, if there is no value over the debt or the assessment to be preserved for the estate, was ruled by Chief Justice Shaw in Ripley v. Sampson, 10 Pick. 373. Such result or intention will not be lighty inferred, but the offer was of testimony tending to support it, and should have been received. The fourth, fifth, and sixth assignments are not sustained. Merely leaving a pledge in the hands of the pledgee with no offer to redeem, but also with no demand by the creditor for payment, is not of itself enough to justify submitting the question of abandonment to a jury. Nor is the lapse of time [195] a bar to the plaintiffs, in the absence of circumstances of equitable estoppel, such as existed in Waterman v. Brown, 31 Pa. 163, and the cases cited from 55 Ill. 468, Adams v. Sturges; and 96 U. S. 611, Hayward v. National Bank. The other assignments do not seem to require particular notice. Judgment reversed, and venire de novo awarded.