Bogert v. Egerton

Spofford, J. (Merrick, C. J., absent.) The evidence satisfies us that the defendant received and disbursed and collected money for Wilkinson in a highly confidential capacity. He styled himself “Treasurer” of a company to which Wilkinson belonged, and whose members were interested in a single joint adventure. On the 22d October, 1850, he stated the balance due by him in this fiduciary capacity, to Wilkinson, as the final result of the adventure, at the sum of $685, for which amount, with interest, the District Judge gave judgment in favor of the plaintiffs, who are assignees of Wilkinson. But, instead of paying the money over then to the party for whom he held it, as he should have done, the defendant kept it, under pretence of a set-off, which was a legal impossibility, according to his own statement of the facts; an off-set which he has not attempted to insist upon in this suit. But it served as an excuse for keeping the money three years, when he acquired a protested note, long past due, on which Wilkinson was endorser, by which he now pretends his debt to Wilkinson .has been extinguished through the operation of law. We concur with the District Judge, in thinking that the allowance of the plea, under all the facts of the case, would be subversive of that good faith upon which the doctrine of compensation reposes. The authorities cited sustain the judgment. Bloodworth v. Jacobs, 2 An., 25; Nolan v. Shaw, 6 An., 46; Breed v. Purvis, Wood & Co., 7 An., 35; 2 Pardessus, Droit Com., § 325. The judgment is therefore affirmed, with costs.