Gschwend v. Estes

By the Court: The agreement between the parties was that Estes should take the property “as trustee for the creditors,” and the court below found that the plaintiff, immediately after the signing of the .agreement, delivered the property to Estes, who “proceeded to execute his trust according to the terms of the assignment, for the benefit of the plaintiff’s creditors”— the defendants in this action. The court further found that some of the defendants directed and controlled Estes in the management of the business, and that they “held frequent meetings * * * for the purpose of managing said business and advising said Estes, and appointed one of their members treasurer, whose duty it was to receive, and who did receive, part of the moneys ”—the proceeds of the sale of a part of the property transferred to Estes. The court also found that Estes afterward returned to the plaintiff a portion of the property, pursuant to a resolution of a meeting of the creditors directing him to do so. A further finding is that the profits received by Estes from the management and sale of the property amounted to several thousand dollars, and that no part of such profits was applied by Estes to the payment of the debts due to the defendants, but the whole of such profits was retained by Estes and converted to his own use. We are of opinion that upon these facts the plaintiff is equitably entitled to have an account of the moneys received by Estes taken under the direction of the court, and to a decree applying the same as a credit upon the several debts of the defendants pro rata. The judgment of the court below is therefore reversed, and the conclusions of law set aside and the 'cause is remanded for further proceedings not inconsistent with this opinion.