Cole v. Boarman

Robinson, J., delivered the opinion of the Court. The appellant, by his petition, prays that the appellees may be required to report the amount paid to them under a decree in the case of Cole vs. Cole, et al., that an account may be stated by the Auditor, &c. Separate answers were filed by the appellees, and these answers were accepted by the Court below, as a report by the appellees under the decree, and the petition of the appellant was dismissed. If the money found by the decree to be due the appellant, had in fact been paid to the appellees as trustees, we should be obliged to reverse the order of the Circuit Court because the appellees do not in their answers state with sufficient accuracy either the amount paid to them, or the manner of its disbursement. Mr. Talhott says he paid to Mr. Boarman, solicitor of the appellant, the entire amount decreed by the Court, including interest and costs, and that he has in his posses [232] sion receipts or vouchers for the whole sum, except six hundred dollars, which said sum Mr. Boarman does not deny having received. Mr. Boarman, instead of showing the precise sum received by Mm and the exact amount paid by him, says the whole amount due to the appellant has been paid to him by Mr. Talbott and himself, “either in cash or by the payment of judgments against the appellant, and that the only balance that has not been paid is the costs about which there is some little trouble,” &c. In his additional answer, he files the appellant’s receipt for one thousand and eighty-five dollars and twenty-three cents, “ in full of claim and decree,” and says he had a paper showing the whole transaction, the payments made by Talbott, &c., but that the paper has been mislaid or lost, and thinks there is a balance still due on the decree of about one hundred and twenty dollars, but he is not willing to speak positively, &c. It is hardly necessary to say that such answers as these ought not to be received of trustees as a final report of money paid to them under a decree. The parties in interest had a right to know the precise amount received and the manner of its disbursement. But the difficulty in this case is, that the record shows that the money was in point of fact paid to Mr. Boarman as solicitor of the appellant, and not to the appellees as trustees under the decree. The appellees were appointed to make sale of the real estate, upon the default by the defendant, J. Alfred Cole, to pay to the appellant the amount found due by the decree on or before a certain day therein named. And the record shows that this amount was paid to Mr. Boarman as solicitor of the appellant within the time prescribed by the decree. The contingency then, upon the happening of which the real estate was to he sold, and the duties of the appellees as trustees were to begin, never occurred. [233] (Decided 26th March, 1879.) The money was not paid to them as trustees, and they cannot therefore be beld accountable in that character. If Mr. Boarman has not accounted for the money received by him, the proceeding should be against him as solicitor. And this may be by petition addressed to the Court below, requiring him to account for the money received by him as solicitor, and to pay the same to the parties entitled. For these reasons we are obliged to affirm the order of the Court below, dismissing the petition. Order affirmed.