Wetmore v. Brown

By the Court,

The plaintiff claims to recover a reasonable compensation from the defendants for services as a trustee, under a deed, whereby two steamships were conveyed to him by the defendants to secure a sum of money to be advanced by the United States to them, to be used in the construction of the steamships, and to be repaid by the defendants, at certain periods; and if default should be made in the payments, the plaintiff was, when required *135by the secretary of the navy, to sell the steamships, and from the proceeds pay the expenses of the sale, the advances of the government, and the remainder to the defendants. Ho provision was made in the deed for the payment of any compensation to the trustee. The debt to the United States has all been paid, without any sale of the ships, and no funds arising from the trust have ever come to the hands of the plaintiff as trustee. The plaintiff has never exercised any of the powers or duties which devolved upon him in the contingency mentioned in the deed.

In such case no personal liability is cast upon the defendants to pay a compensation to the trustee. His recourse, if any, as to the defendants or the property in his hands, has at all times depended upon funds coming to his hands by virtue of the trust. He renders no service to the defendants or to the estate, and no compensation is earned, except in that event. Merely holding the title of the ships requires no service, and involves no liability against which the trustee is not fully indemnified by the property in his hands. Had the plaintiff expected a compensation to be paid by these defendants for holding title merely, he should have mentioned it before the trust deed was executed, and had a clause inserted so as to carry out his wishes, if the defendants were willing to consent.

There is nothing in the case tending to show that the defendants requested the plaintiff to become trustee, or from which a promise to pay him commissions can be implied, except in the case of the plaintiff being lawfully required to sell the steamships, under the provisions of the deed, and then the fund would be answerable.

It is stated, however, that the plaintiff was required by the secretary of the navy to advertise and sell under the deed; that the plaintiff has done so, and has necessarily incurred an expense of two or three thousand dollars. It is conceded that the debt to the United States has all been paid, and it •is not in evidence that any installment was in fact due or *136unpaid when the requisition was made by the secretary. If the requisition was unauthorized, the plaintiff must look to those only who directed the proceeding. Before the defendants can be made chargeable for those expenses, it must be proven.that they were in default.

The plaintiff also insists upon his right to commissions upon one of the installments of the loan advanced by the government to the defendants, amounting to $50,000, which passed through his hands.

The plaintiff was no broker or agent of the defendants to obtain the loan. He received the money as an agent or officer of the government, and jiaid .it to the defendants in his capacity as such government officer. The government was the lender, bound to place the whole sum loaned into the hands of the borrowers, or subject to their orders, without any charge or deduction made by their own agents.

We think there is no personal liability resting on the defendants.

The judgment must be affirmed, with costs.

Ingraham, Leonard and Olerke, Justices.]