Bank of Bellows Falls v. Deming

17 Vt. 366

• Court: Supreme Court of Vermont
• Decided: February 15, 1845
• Status: Published

Opinion

The opinion of the court was delivered by

Williams, Ch. J.

We can see no reason for reversing the judgment of the county court. There is nothing in the terms of the assignment, which bound the creditors to delay commencing suits. Neither is there any such agreement to delay implied in the fact of the plaintiffs’ accepting and receiving the amount paid to them by the assignees, as trustees.

The case of Kingsbury v. Deming et al.,

* decided in this county in February, 1842, can be no authority in the case. In that case there was an agreement in writing, signed by Kingsbury, by which he accepted the provisions made in the assignment, and agreed to accept ¿he' dividends, which might accrue, and await the same. This was held to be a temporary bar. In the case before us, there is no such acceptance, or agreement. The judgment of the county court is therefore affirmed.

Im Kingsbury v. Riley A. Kerning and Albert Onion, Windsor Co. Feb. T. 1842. This was an action of assumpsit upon a promissory note, signed by the defendants as partners, and came to the county court by appeal. In the cbunty court the defendants pleaded, in bar of the plaintiff’s action, that, prior to the commencement of this action, they had made a general assignment of all their partnership property, for the benefit of all their creditors, of whom the plaintiff was one, — setting forth the terms and provisions of the assignment, — and alleged that the plaintiff, “ in writing, under,his hand, ac- “ cepted the said provision, so made for him, as aforesaid, and then and there, “ in consideration thereof, to wit, of said .assignment and the provisions therein, as aforesaid, the said plaintiff agreed to await the said accounting of the “ said assignees, and the payment of the dividend which might accrue and “ belong to the said plaintiff, as aforesaid, and to forbear and suspend all pro- “ cess of collection of said note, in the said action sued, until the said ae- “ counting of the said assignees, as aforesaid, and until a reasonable and prop- “ er time be allowed to said assignees for rendering their said account,” &c.; and the defendants averred, that, at the time of the commencement of this action, such reasonable and proper time had not elapsed, and that the said assignees, — who accepted the trust, — had not completed the duties of their appointment, nor rendered any account of their doings. This plea was traversed by the plaintiff, and issue was joined to the court.

Upon the trial of the issue the only evidence offered by the defendants was an assignment in writing, executed by the defendants, bearing date prior to the commencement of this action, which purported to convey to the assignees, therein named, all the partnership property of the defendants “ in trust, to “make sale of the property herein conveyed, and collect the debts and “ choses in action belonging to us, with all due diligence, to defray their “ expenses in the business intrusted to them herein, to pay the several joint “ creditors of the said R. A. 'Deming &, Co., in equal proportions, then to pay “ the balance,' if any, in equal shares, one half to the creditors off the said. “ Albert, and the other half to the creditors of the said Riley A., to keep an “ account of their doings, and the same render to the said Riley and Albert, “ and to pay them the balance, if any, which may remain in their hands,” and also an acceptance in writing, indorsed upon the back of said assignment, and signed by the plaintiff, prior to the commencement of this action, and by several creditors of the defendants, which was in these words, — “ We hereby “ accept of the provision made for us in the foregoing assignment, and agree <c to receive the dividends, which may accrue to us after a faithful accounting “ by the said assignees, and await the same.” To the admission of this evidence the plaintiff objected, but it was received by the court, and judgment was rendered in favor of the defendants; to which decision the plaintiff' excepted.

In the supreme court the case was argued by D. Kellogg and Z. ’Adams, for. plaintiff, and by N. Richardson and 0. Hutchinson, for defendants; and The Coubt held, that the facts pleaded, and proved, showed a sufficient consideration for the agreement entered into by the plaintiff, and that the agreement, signed by him, operated as a temporary bar of his right of action, and that the evidence of such agreement, in the form in which it was offered, was properly received; and the judgment of the county court was affirmed.