Wart v. Mann

Soule, J. It appears from the agreed statement that before the plaintiff’s writ in the original action was served on these defendants as trustees of Stevens, the principal defendant therein, Stevens, had earned wages in their employ. He had been paid in full, and there were no funds in the hands of the trustees, unless the payment of forty-nine dollars and fifty-six cents to the defendant Brackett, out of those wages, was void as against the plaintiff. This payment was actually made, as we understand the agreed statement, and with the assent of Stevens, before the trustee process was served, in part fulfilment of an oral contract between Stevens and Brackett for the purchase by Stevens from Brackett of certain lands, the deed of which was to be given only on payment of one hundred dollars on or before a certain day. There is nothing to show, and it is not contended, that this agreement was a fraudulent or colorable arrangement made to hinder creditors; and we must treat it as having been entered into honestly. This being so, the payment was a valid one, and took the money out of the hands of these defendants, and relieved them from responsibility to Stevens in regard to it. Brackett cannot be held individually in this suit, for various reasons. He was not summoned as trustee, except as one of the firm composed of both defendants. He was not charged in the original action, except as a member of that firm. And when he received the money he did not become a debtor of Stevens, because the money was paid in performance of an obligation on the part of Stevens to him, which was so far binding that Stevens could not recover it in an action against him without showing that he had refused or was unable to perform the contract on his part. Congdon v. Perry, 13 Gray, 3. That he had refused or was unable to perform it, is not contended. The result is, that the defendants had no goods, effects or credits of Stevens in their hands, possession or control, when the trustee process was served on them, and are entitled to judgment. Judgment affirmed.