Bouvé v. Cottle

Deyeíts, J. If the plaintiffs sought to establish that there had been any wilful neglect on the part of the trustee in failing to collect, account for, and pay over to the creditors of the assignor, by whom the written assignment was made to him for their benefit, so that the plaintiffs should receive their whole debt or a larger part thereof than the defendant admitted to be due, their remedy was by a bill in equity brought on behalf of all creditors who had become parties to the trust. The trustee should not be obliged, in separate actions at law brought by individual creditors, to show that he has faithfully and honestly administered his trust, and that nothing more is due from the proceeds of the property than has already been paid over. New England Bank v. Lewis, 8 Pick. 113. Bryant v. Russell, 23 Pick. 508, 523. Johnson v. Johnson, 120 Mass. 465. Had it been competent in this action to investigate the management of the trust, the plaintiffs’ evidence also entirely fails to show any misconduct on the part of the trustee. It neither shows the amount realized, or that which, with proper care, could have been realized, from the ■ assets, the amount of claims proved, the expenses of executing the trust, nor what the plaintiffs’ pro rata shares were or should have been. It was therefore correctly ruled that the plaintiffs could only recover such amounts as the defendant by his answers had admitted to be due. Where a sum of money is definitely ascertained to be due as the proceeds of a trust to a single creditor, he may maintain an [314] action therefor. Thus, where one receives an assignment in trust of property to be disposed of and distributed among the creditors of the assignors, of whose names he is informed, and accepts the trust and executes it with the exception of paying a single creditor named, he is liable to such creditor, after demand and refusal, in an action for his proportionate share as such share has been determined. On these facts the money in the hands of the defendant may be treated as that of the plaintiff received by the defendant to his use. No special promise to pay it is necessary. The law creates the privity and implies the promise. Frost v. Gage, 1 Allen, 262. In the cases at bar, it appears that on July 15, 1884, the day when these actions were commenced, the defendant made up his accounts as trustee, and found only enough in his hands to pay a dividend of twenty per cent on the claims proved. This dividend was paid to each of the other creditors, and received by them as a final dividend. The defendant’s second answer (the first being a general denial) admits a certain amount to have been due in each case, which is equal to twenty per cent of the claims of the plaintiffs, and avers that these amounts, with all costs then accrued, had been tendered to and accepted by the plaintiffs. The tender in each case was made on July 29, and was accepted, but not in full settlement; and the jury were instructed, that if, in addition to the costs, it was found that the sums tendered amounted to or exceeded twenty per cent of the amounts due to the plaintiffs respectively as creditors of the assignor, with interest on the said twenty per cent from the date of the plaintiff’s writs to July 29, 1884, their verdict should be for the defendant. The plaintiffs contend that this should not have been submitted to the jury, and that the sufficiency of the tender should have been determined as a question of law. But if this is so, it is not important, as, if a question of law is erroneously submitted to a jury and correctly decided, there is no ground for any exception. The presiding judge might, however, well have left to the jury the computations required to determine whether .the tenders had been sufficient, and it was necessary to do so in order to determine what was the amount of the twenty per cent, which depended to some extent on the credibility of the defendant. There is no reason why, [315] under his answer, he might not testify to this. He had in his answer admitted a certain sum to he due the plaintiffs, with costs. He had not stated this as being only the twenty per cent of the plaintiffs’ original claim, and he might by his testimony show that the sum admitted was large enough to, and did, include interest thereon. Even if the defendant’s answer does not state that his tender included interest, the acceptance in each case by the plaintiffs respectively of sums large enough to cover interest and legal costs in addition to their twenty per cent, leaves them no ground of complaint, as they have received all that was their due. ^ The plaintiffs contend that, by a plea of tender, the defendant has so admitted their respective causes of action that they are entitled to judgment for the full amount of their original claims. The answer can hardly be called a plea of tender. It is an informal statement only that a certain sum had been due from the defendant, and had been paid to and received by the plaintiffs. Where a declaration contains a single count specifically set forth, a tender amounts to an admission of every fact which the plaintiff is bound to prove in order to maintain his cause of action. Currier v. Jordan, 117 Mass. 260. Bacon v. Charlton, 7 Cush. 581. But where the declaration is general, tender and payment only admit some contract of the kind alleged in the declaration, with damages to the amount paid in. If the plaintiff seeks to recover more, he must prove a contract entitling him so to do, as well as to recover the amount paid in. Nothing beyond the amount paid in is admitted. Bacon v. Charlton, ubi supra. Exceptions overruled.