Sanger v. Ryan

CHIPMAN, C. Action to have plaintiff declared to he entitled, as assignee in insolvency, to certain shares of defendant corporation. The court found that J. B. Myer & Co. were declared insolvents August 7, 1896, and plaintiff is the duly elected assignee of said insolvents; the shares in question (of which there are one hundred) were of the value of one hundred dollars each and had been assigned by Myer & Co., owners, on August 3, 1896, to defendant Ryan, within thirty days prior to insolvency proceedings; the assignment was without consideration, s,nd not in the usual course of business, hut Ryan then had no knowledge of Myer & Co.’s insolvency; he had no beneficial interest in the stock or its dividends; the court further found [53]■that “under the circumstances in which said stock was intrusted to the defendant Ryan, he had doubt whether it was partnership' property of the said firm or the individual property of said Myer and Merrill, each being the owner of fifty shares,” and that “An individual creditor of said Merrill, in an action against him, attached, or attempted to attach, fifty shares of said stock ■as the property of said Merrill, and said Ryan has in good faith made defense herein for the purpose of having the ownership -of said stock judicially determined, and to relieve himself from liability as such trustee.” As conclusion of law, the court found plaintiff entitled to the shares and dividends, “less, however, the sum of one hundred and fifty dollars hereby allowed to the said defendant, Thomas C. Ryan, for his reasonable expense incurred in the employment of counsel and otherwise in the litigation concerning said trust property.” Judgment was accordingly rendered. The appeal is from so much of the judgment as awarded counsel fee to defendant Ryan, and comes here by bill of exceptions. It is claimed that the findings are not supported by the evidence; and the judgment is not supported by the findings.

It is contended that there is no evidence to sustain the finding that, under the circumstances in which the stock was intrusted to Ryan, he had doubt whether it was firm property or individual property of the firm’s members; that an individual creditor of Merrill (one of the partners) attached, or attempted, to attach, fifty shares, and that Ryan in good faith made defense in the present action to determine the ownership of the property. The only evidence submitted by defendant was that of his attorney, who testified that when Ryan was served with summons witness was employed by Ryan “to protect him as trustee, and to make such showing to the court as would reveal the fact that he held this stock as trustee for Mr. Myer and Mr. Merrill, and that he had no interest in it whatever other than as a trustee; and to put in such showing as would show that he held it in good faith; and to save him from the charge of having received it with any intent to defraud anybody; and to put in an answer in this case, and to make such showing as I thought was right- and proper in order to protect the trust and to protect him from any claims against Mr. Myer and Mr. Merrill.” The action was