Kemp v. Foster

Hall, J. The court erred in refusing to give the declarations of law asked by the defendant, set out in the preceding statement. The second count of the peti [649] iion was based upon the collection or receipt of one hundred dollars by defendant from Lucy Rensch for plaintiff. The plaintiff can recover that sum upon no other ground than the one thus stated. We do not wish to be understood as holding that the defendant must have received the money bodily from Lucy Rensch; but we do hold that the defendant must have, under the allegations of the petition, received credit from her to that amount on plaintiff’s account, or authority from her to pay said sum to the plaintiff. The court’s action in refusing such declaration of law cannot be supported upon the idea that the defendant promised to pay the plaintiff the one hundred dollars, when he handed the receipt to the defendant, and that thereby there was created between the plaintiff and defendant the relation of creditor and debtor. Because there was no evidence to that effect, and, besides, such was not the'ground of recovery set out in the petition. As this case must be re-tried, we deem it well for us to say that the third count of the petition states an equitable cause of action, and regularly it was triable by the court as a chancellor. The cause of action stated in said count of the petition is based upon a trust and accounting with defendant as a trustee, as asked for. The defendant is not charged to have been a mere go-between between the plaintiff and the purchaser from him of the real estate, but the defendant is charged to have been a trustee for the purposes mentioned. Generally, a trustee is entitled to a reasonable compensation for his time, trouble, and skill in managing the fund and executing the trust, unless it appears that it was the intention that no compensation should be charged. 2 Perry on Trusts, sects. 917, 918, and authorities cited. If the trustee is guilty of any breach of trust, or of any vexatious or improper conduct, the court can withhold all compensation, or can allow such compensation as will pay for the trustee’s services, so far as they have been beneficial. Id., sect. 919. [650] Upon a new trial, the canse of action stated in the third count of the petition should be tried in accordance with the views herein suggested. Judgment reversed and cause remanded. All concur.