Aldrich v. Brooks

This trustee cannot be charged unless the principal defendant, Brooks, had a right of action against him for the amount of the note.

By the terms of the contract, the $50 were payable to Brooks, in boarding his wife and child. No time is fixed for the payment, and an action for money could not be maintained upon the note until after a demand made, and a refusal to fulfil the terms of the contract. From the very nature of the instrument, the trustee could not be charged for the amount payable specifically, according to the terms of the contract, because it would be requiring him to render to the plaintiff what could not be done for his benefit.

The trustee, then, in order to be charged, must be liable to pay the $50 in money; and before the action can be sustained, the plaintiff must show such liability. It is not sufficient that the note be due specifically, according to its terms, but it must be due in cash, and the evidence must be competent to establish that fact.

The instructions of the court did not go~ far enough. *245They should have been to the effect that the note must be due in money. The plaintiff may, perhaps, supply the deficiency in the evidence, and change the character of the case upon a new trial, but as it now stands, the verdict must be set aside.

It does not appear that any question of fraud was raised upon the trial. If actual fraud should be shown, although the trustee might not be chargeable on the contract, it being personal, for the performance of a specific thing, which could not be transferred, yet he might be charged for the consideration that passed for the contract; for the money or goods placed in the hands of the trustee as the consideration. In such case, the contract would be regarded as void, and the trustee charged for what he had received.

It was stated in the argument by the plaintiff’s counsel, that the principal defendant was insolvent. But upon the ruling of the court, this would not change the character of the case. The only question left with the jury was, whether the note was due, and the question of insolvency could not, therefore, arise.

Verdict set aside.