Vincent v. Gandolfo

Spoeford, J. The plaintiffs have appealed from a judgment discharging the garnishee, Dryer, on his answers. He acknowledges that he had funds in his hands belonging to the debtor, Gandolfo, to an amount sufficient to satisfy the claim of plaintiffs, but under the following circumstances, which he contends authorize him to compensate what he has against a debt due him by Gandolfo. He says that “on the 8fh November, 1856, the said Gandolfo, on condition that his creditors should give him a discharge from the debts and obligation which he owed to them respectively, conveyed and assigned to said creditors certain rights, chattels and effects. Judah Ha/rt and respondent were appointed assignees to receive and dispose of said property, and distribute the emails among the creditors pro rata. The property was sold by Messrs. Blache & Lea/wmont, and the proceeds, amounting to $2460 53, were pond into our hands. Of this amount the sum of $470 50 has been applied by us to the payment of privileged creditors of said Gandolfo, leaving a balance in our hands for distribution of $1989 05. Attachments to the amount of $1400 have been laid on said money in the hands of said Hart and myself in the following suits, &c., and the balance [527] respondent says he is entitled to retain to satisfy his claim against said Gandolfo, amounting to about $120. Respondent further says that said Iiart, having declined to act any further as one of the assignees aforesaid, delivered up to respondent the possession of said money ; respondent is ready to distribute the same as soon as the attachments aforesaid are removed.” It is stated in the printed argument of appellee’s counsel that the creditors did not accept the assignment. Under these circumstances it is apparent that the respondent got and retains the money only in a fiduciary and confidential capacity. He styles himself an assignee for the purpose of distributing a fund which is the common pledge of Gandolfo's creditors. To offset his own debt (the character and terms of which he does not disclose) against a portion of this common fund intrusted to him for a specific purpose would be a violation of good faith, and compensation rests upon good faith. The case of Bogart, Williams & Co. v. Egerton, 11 An. 73, is in point. See also the recent case of Morgan, v. Lathrop, ante, 257. It is ordered, that the judgment of the District Court he avoided and reversed; and it is now ordered and decreed that the plaintiffs, Vincent & Co. do have judgment against the garnishee, B, A. Dryer, for the sum of four hundred and twenty dollars and eighty-two cents, with five per cent, interest thereon from December 29th, 1856, until paid, and the costs of suit in both courts.