Downer v. Curtis

The opinion of the court was delivered by Bennett, J. This case has been very fully argued, and with great ingenuity, and we have been pressed, to hold that the liability or indebtedness of Burton to the principal debtor, was so far contingent, that it could not be reached by the trustee process. We would refer to the exceptions^ disclosure, and accompanying papers, for a full statement of the facts. The proposition that a contingent claim is not subject to the trustee process, is in itself considered very simple; but it is in the application of it to particular cases as they arise, which creates the difficulty. This much is clear, that to prevent the trustee process from attaching, the contingency must be such as to affect the debt itself, which is supposed to be due, and not simply the liability of the trustee, to have the effects or credits called out of his hands in a particular manner. The adjudged cases will show many examples illustrating this distinction. See Thorndike v. De Wolf & Tr., 6 Pick. 122. Dwinell v. Stone, 30 Maine,338. Shepley, Ch. J., in this last case well says, that “ it is not a contingency, whether anything will be “ found due on settlement, which will defeat the trustee process; but “ such as may prevent the principal from having any claim whatever, “ or right to call the trustee to an account, or to have him settle with “ him.” The Maine statute on this subject is the same as our own. In Downer v. Topliff & Tr., 19 Vt. 399, the distinction is thus marked by the late Ch. J. Royce. “ If the liability is certain, “ and the debt only uncertain as to amount, it is not contingent with- “ in the meaning of the statute.” In the case of Burke v. Whitcomb, 13 Vt. 421, which seems to be much relied upon by the trustee’s counsel, the contingency affected the debt itself. The only question then in this case is, whether there is any contingency, which can affect the debt or liability of the trustee, or simply the time, or manner in which the trustee shall account. The trustee had received, before the service of the trustee process, $783 of the money of the principal debtor, and this he was bound to account for, though in a particular way. He had a right to detain the money in his hands for certain pur [655] poses specified- in the disclosure, and when those purposes were answered, what should remain in the trustee’s hands he was hound to pay over to the principal. The only purposes, for which he had a right to detain the money under his contract with the principal debtor was, to pay his advances, his bonus of fifty dollars, and for his indemnity, as. the bail of the principal debtor for the due fulfilment of the contract; and when these ends were answered, he had no further right to detain anything which might remain in his hands. The case shows, that the trustee had the right to detain only to the amount of $570, and so far it was good, in accounting to the principal debtor; and in November, 1852, and before the hearing in the County Court, the town of Hartford, canceled the contract with'the principal debtor, which the trustee had signed, and all right in the trustee to farther detain the balance of the funds in his hands, then ceased; and this balance then became certain, and could be fixed by an adjudication in the trustee process. There was an absolute liability on the part of the trustee to account for the money received; and the only contingency was, as to the time when and the manner in which he should account. In the cases cited of railroad contracts, there were provisions that the Railroad Company might retain a given per cent on the monthly estimates, accompanied with a provision for a forfeiture of such per centage, in case of a breach of the contract. This was such a contingency as affected the debt itself. So in the cases from Massachusetts, 2 Cush. 390, and from Maine, cited from the 11th Yol. of Taw Reporter, a given per cent was not to be paid, till the contracts were completed and accepted. The completion of the job in such cases was a condition precedent, and of course the debt contingent. The argument in this case is, that the trustee could have no claim against Curtis, until he had completed the road. But this is not warranted by the contract between them. The language is, “ that “Burton might retain enough to pay and indemnify him against all “the aforesaid claims and liabilities of him the said Burton, and pay “ the further sum of fifty dollars for his trouble, &c.” This does not affect the debt itself; but only the mode, and time of accounting. When the road contract was canceled by the town, and discharged, Burton could not be damnified in consequence of being bail. The judgment of the County Court is affirmed.