Shepard v. Abbott

Barker, J. The case comes up by a report after a verdict for the plaintiff, and by the terms of the report if the rulings and refusals to rule stated in it are correct, judgment is to be entered upon the verdict, otherwise a new trial may be had or such order made as justice may require. Both parties must be taken to have assented to the terms of the report, and we are of opinion that, whether all the rulings and refusals to rule were correct or not, there should be judgment on the verdict. 1. The mortgagee had paid over the whole sum of $10,500 for which the mortgage was given, $4,500 of it to the mortgagor directly and $6,000 to the defendant. In receiving and disbursing the $6,000, the defendant was in no sense the agent of the mortgagee, but was simply a trustee holding funds of the mortgagor and charged with the duty of seeing that the $6,000 was applied to the building of the house for which the lumber mentioned in the order was furnished by the plaintiff. In administering the trust he might make himself liable to the mortgagee, but could not render the mortgagee liable to third persons. Such contracts as he chose to make with third persons in administering his trust he alone was liable upon,- at least to the extent of the trust fund. We need not inquire whether the language of the order as he saw fit to change it after it was signed by the maker and delivered to the plaintiff, and the language of the acceptance, limited the defendant’s liability to the amount of the trust fund in his hands, [306] because it is conceded that the fund was much larger than the amount-of the order, and that after accepting the order he has accepted and paid other orders, and he does not contend that when he accepted this order there was not in his hands enough of the trust fund to discharge the obligation which he assumed by his acceptance. The legal construction of the order in view of the circumstances under which it was given being that the defendant contracted as a trustee and not as an agent the rulings requested upon the law of agency were inapplicable and were properly refused. The final exclusion of the evidence introduced de bene by the defendant did him no harm, because it showed that he acted merely as a trustee, and with ample funds to meet the order, and not as an agent. 2. The remaining question is whether the language of the order “and charge the same to the $1,800 payment” made the payment of the order by the defendant as acceptor conditional upon the becoming due of the $1,800 payment. But the order itself contained not only an additional general direction by the drawer to charge the same to his account, but the words “ Said order to be paid on or before November 1st, ’99.” In our opinion the legal construction of the order is that it was to become due and be paid on the date given, and that the direction to “ charge the same to the $1,800 payment ” merely indicates to what sum as between the drawer and acceptor the payment of the order should be charged. The defendant was not to receive the $1,800 payment, but was to make it and out of funds already in his own hands as trustee, and by his acceptance was bound to pay the order by November 1, 1899, at the latest. Judgment on the verdict.