Foster v. Deming

The opinion of the court was delivered by Davis, J. The circumstances of this case are the same as those of Kingsbury v. Deming et al., stated- in a note to the case of Bank of Bellows Falls v. Deming et al., 17 Vt. 367, except that in the present case a dividend of twenty five cents on the dollar had been ascertained and declared by the surviving assignee, and the plaintiff was notified thereof and refused- to accept it, — on what ground does not appear; but, after the commencement of this suit, he thought better of the matter and did r.eceiv.e his share. Several years, too, had elapsed, since the commencement of Kingsbury’s suit. These circumstances materially change the aspect of the case. [316] There was no formal accounting, on the part of the assignee, either with the creditors or the assignors. Whether the dividend of twenty five cents was declared upon a full collection and conversion into cash of the assets placed in his hands does not appear. If it was so, and no more than a reasonable compensation for services and expenses was deducted from the fund, and no fraud appeared, it would substantially amount to an accounting, within the meaning of the contract between the parties. The ceremony of a formal accounting would be of no importance. Nothing in the case shows, that any farther delay was necessary in suing for the balance. The refusal to accept and apply the portion of the fund, to which the plaintiff was entitled, could of course have no effect on his right to sue. Eventually the amount was received, and accounted for in making up the damages. This, however, seems not to have been the ground, on which the case was put in the county court. We perceive, nevertheless, no error in the instructions that court gave to the jury. If farther assets remained to be liquidated, and a formal accounting, even, were necessary, it w.as in strict accordance with the ground, on which the case of Kingsbury v. Deming et al. was determined, to refer it to the jury to say, whether, under the circumstances, a reasonable time had elapsed, to enable the assignee to do all that was necessary to a perfect accounting; and, if it had been unreasonably delayed, the plaintiff would not be obliged to wait longer, but might commence his suit. The judgment of the county court is affirmed,