Brunswick Gas Light Co. v. Flanagan

34 A. 263, 88 Me. 420, 1896 Me. LEXIS 27

• Court: Supreme Judicial Court of Maine
• Decided: February 3, 1896
• Status: Published

Opinion

Haskell, J.

The trustee discloses in its hands $3120.12, being twenty per cent of the contract price retained as security for the completion of the same ; $1500 of this is held by a trustee under an assignment for the benefit of defendant’s contract creditors, who had become parties to the assignment; Pleasant Hill Cemetery v. Davis, 76 Maine, 289; $827.25 more is held by the payee of an order accepted by the trustee, and $1000 upon still another order, also duly accepted. All these sums aggregate $3327.25, or $207.13 more than the sum in the trustee’s hands, and, therefore, he was properly discharged below. Jenness v. Wharff, 87 Maine, 307.

Moreover, the plaintiff has elected to proceed with his case without making the claimants of the fund parties to the suit, and, therefore, cannot adjudicate their rights adversely to them. Jordan v. Harmon, 73 Maine, 259.

The word " charged ” in Haynes v. Thompson, 80 Maine, 128, line eleven from the top of the page, is a misprint. It should be discharged. The context corrects the error. The correct reading is — Ordinarity, the burden rests upon trustees to clear themselves from being charged. Barker v. Osborne, 71 Maine, 69; Toothaker v. Allen, 41 Maine, 324. So when they disclose a sum due the defendant and an assignment of the same, unless the assignee is summoned, or voluntarily appears and claims the fund, they (the trustees) must be discharged. R. S., c. 86, §32. But when the assignee does appear and claims the fund, the burden rests upon him to establish his claim. Thompson v. Reed, 77 Maine, 425.

Exceptions overruled.