Opinion of the Court.by
Judge Settle
Affirming.
On December 5, 1898, tbe firm of Simonson, Whitetson & C'o., composed of D. Gr. Simonson, I. Whiteson, and Leo Stern, conducting a mercantile business in tbe city of Louisville in a house known as tbe “Mammoth,” made a deed of assignment to their bookkeeper, tbe appellant, L. Comingor, conveying him for [701] the benefit of their creditors the stock of merchandise and-fixtures in the Mammoth store. The latter at once accepted the trust, executed bond with approved security, and duly qualified as such trustee, thereby undertaking to perform in a legal manner the duties required of him in that capacity. At the time of the assignment the cash value of merchandise owned by the firm of Simonson, Whiteson & Co., was between $100,000 and $138,000, the fixtures and electric plant in and connected with the store about $12,000, and there was due the firm in open account's about $7,000. Probably it would not be overstating the mark to say. that the total assets of the firm then approximated $150,000, and that its liabilities were nearly as great. Appellant immediately procured the appointment of appraisers to appraise the assigned property. The appraisers completed their work in four days, placing the value of the property at the sum of $71,656.56, which‘was much less than its actual value. Three days after the filing of the deed of assignment, appellant brought suit in equity to settle his accounts as assignee. Only a few of the firms’ creditors were made parties to this action. One of the largest creditors, the Louisville Banking Company, though conducting business just across the street from the Mammoth store, was not made a party to the action. Summons was executed upon only the members of the firm in question, but later and by amended petition two other creditors were made parties and served with summons. On December 10, 1898, the assignee opened the store, and commenced the sale by retail of the assigned property. Later he filed two petitions to obtain advice of the court. By the first he asked permission to sell the stock of goods by retail'. By the second he reported large sales at prices [702] above the values fixed by the appraisers, and averred that he still liad on hand over $5,000 worth .of the assigned property. As a matter of fact, according’ to the weight of the evidence, the goods then on hand were reasonably worth as much as or more than $70,000. On January 25, 1899, appellant in another' petition, then filed, again asked advice of the chancellor, and averred that there were only “remnants, odds, and ends” left of the stock, a sale of which-as a whole would redound to the benefit of his assignors and their creditors. The order of sale was granted by the court, though none of the creditors, even those who were parties to the action, had notice of the request or order. The law firm of Kohn, Baird & Spindle, who represented a few creditors, not parties of record, had such notice, but did not concern'themselves about it, as their clients but theretofore agreed with appellant and Simonson, Whiteson & Co. to ac; cept 50 cents on the dollar in settlement of their demands.'
The assignee thereupon caused to be inserted in small type and in an obscure column of the Louisville Evening Times, between a notice relating to false hair and another to false teeth, an abbreviated advertisement of the time and place* of the sale to be made of the assigned merchandise and fixtures-. The Times foreman was directed by the assignee to insert the advertisement without display. It appeared in the Times on Friday and Saturday, January 27 and 28,1899, and the sale occurred on January 30th, which was Monday of the following week. As there was no issue of the Times on Sunday, the advertisement was published but two days, Friday and Saturday. The goods and fixtures sold were purchased by Henry Stern of New York at the price of $15,000, Henry [703] Stern is a brother of Leo. Stern, who was a member of the firm of Simonson, Whiteson & Co. at the time of the assignment to Comingor. Shortly before the sale the three members of the firm of Simonson, Whiteson & C'o., made an agreement in regard thereto with Henry Stern, which was reduced to writing by their attorney, and signed by the parties several-months later. That writing reads as follows: “We have agreed to divide equally between us all that may be left out of the assets of Simonson, Whiteson and Co., and what we may save from the wreck after paying the indebtedness of said firm to D. L. Newborg & Son, and Stern, Falk & Co. Louisville Ky., June 14th, ’99. D. Gr. Simonson. I. Whiteson. Leo Stem.” Under the verbal agreement entered into before the sale, Henry Stern was to come to Louisville and bid for the stock and fixtures not less than $15,000, nor more than $20,000. On the day of the sale, and at the hour named in the advertisement, to wit, 10 o’clock a. m., Henry Stern was on hand pursuant to the agreement referred to, and at 10:30 o’clock the goods and fixtures were knocked down to him at the price of $15,000, which he at once paid to the assignee. The sale was consummated under unusual circumstances. The store was closed to the hour fixed for the sale, and neither at the time indicated, previous thereto, or during the sale was there any effort to attract the notice of the public either by the customary ringing of an auction bell, the hanging out of a red flag, distribution of handbills, or posting of a notice on the store door. While conducting the sale the auctioneer stood on the stairway leading from the first to the second floor of the store. In from five to twenty minutes after the auctioneer reached the store the sale was consummated. Though [704] all the time present, neither the assignors or assignee exhibited the goods, called attention to their quality or value, or did anything to encourage bidding. All the while the goods on the first floor remained covered, and those in the basement and on the second, third, and fourth floors were never shown the few •persons, besides the parties in interest, present. The auctioneer did not have, nor had the assignee fur-rushed him, an inventory of the property sold. There was no offer to sell the goods in lines or by lots, or to-make a separate sale-of the fixtures. But few persons were present, and Henry Stern was practically the only bidder. According to the testimony of some of the persons in attendance, one or two of the spectators would have made bids, but Whiteson deterred them from doing so by requesting them not to take away his bread and-meat. One prospective bidder was threatened with a choking if he persisted in bidding, and yet another was given a note of several hundred dollars he was owing Simonson, Whiteson & Co., to keep him from bidding. On the day of the sale, and upon his paying the assignee the amount of his bid, Henry Stern took possession of the goods, and two days ■ later placed them in possession of Leo Stern. Simon-son and Whiteson, the first as manager, immediately following which Henry Stern returned to New York, where he has since remained. While in charge of the goods and business left with him by his brother Henry, Leo Stern replenished the stock to the amount of $15,-000, and during the six months of his management of the business he deposited in the GermanBankofLouisville $82,138.16, realized from the sale of the goods-his brother purchased of the assignee of Simonson, Whiteson & Co., and the $15,000 further stock, added thereto, under his (Leo Stern’s) management of the [705] business. On February 1, 1899, or two days after the sale to Henry Stern of the goods and fixtures of Simonson, Whiteson & Co. by the assignee, the Louisville Banking Company, principal creditor of the firm, brought «uit to set aside the sale of the property to Henry Stern, and to subject the same to the payment of the firm’s debts, and shortly thereafter other creditors of the firm filed in the United-States District Court for the Western District of Kentucky a petition in involuntary bankruptcy against Simonson, Whiteson & Co. and each member of the firm, and the company and members thereof was later duly adjudged bankrupts. Following this adjudication, the referee in bankruptcy issued rules against Comingor, assignee of Simonson, Whiteson & Co. and his attorneys to show cause why the assignee should not pay to the trustee in bankruptcy $3,398.90, the amount claimed by the assignee as commissions, also $6,766.53, balance of the assets of the estate of his assignors admitted by him to be in his hands, and the further sum of $3,000 which he claimed to have paid as a fee to his attorneys. The rule being made absolute as to the $6,766.55, that sum was paid by the assignee into the federal court, but upon appeal to the Circuit Court of Appeals, and later to the Supreme Court, those tribunals reversed the judgment of the district court, upon the ground that the assignee had a right to have his accounts settled in the State court in which was still pending the action brought by him to obtain a settlement of his accounts. Louisville Trust Co. v. Comingor, 184 U. S. 18, 22 Sup. Ct. 293, 46 L. Ed. 413.
Upon the conclusion of the litigation in the federal courts, the Louisville Trust Company, trustee in bankruptcy, by supplemental answer, cross-petition, and [706] counterclaim filed in -the action in the Jefferson circuit court asked to enforce a settlement of Comingor’s accounts as assignee of Simonson, Whiteson & Co., and to recover of biin the amount he had or should have in his hands belonging to the estate of his assignors. The circuit court, being of opinion that the questions of law and fact raised by the pleadings could be determined by the court without the cost and delay arising from a reference to the commissioner, refused' to order such reference. On the hearing, the court below rendered judgment in favor of the Louisville Trust Company, trustee in bankruptcy of Simonson, Whiteson & Co., against Comingor, assignee of the same firm, for $10,706, with 6 per cent, interest from July 5, 1900, upon the ground that his fraud or negligence caused a loss to the estate of that amount; and for the further sum of $3,398.90, with 6 per cent, interest from the 5th day of July, 1900; the sum last mentioned being the amount of commissions retained by him for services claimed to have been rendered as assignee, but which the court held he was not entitled to on the ground that his negligence caused a loss to the estate of his assignors to that amount, in addition to the larger sum first named. Comingor complains of the judgment, hence-the appeal; and, as appellee Louisville Trust Company was claiming in its answer and counterclaim a much larger sum than was recovered, it took a cross-appeal- because of the failure of the circuit court to give judgment in its favor for the full sum claimed.
We are of opinion that the evidence appearing in the record clearly shows that there was a fraudulent agreement, entered into before the public sale of January 30, 1899, between Simonson, YTiiteson, and Leo Stem on the one part, and Henry Stern on the other, [707] pursuant to which the stock of assigned .goods and fixtures of the former were to be sold to the latter at greatly less than their value, to wit, $15,000, or not exceeding $20,000, and that, after being purchased by Henry Stern, they were to be sold and the proceeds divided among Simonson, Whiteson, and Leo Stem, after paying the claims of the preferred creditors named in the writing subsequently drawn to evidence the agreement. Appellant’s- knowledge of the agreement and participation in. the consequent fraud is, we think, also established by the evidence. His position as bookkeeper of Simonson, Whiteson & Co., necessarily made him familiar with their business, and rendered it practically impossible for them to execute the agreement in question without his knowledge and assistance. As the assignment was necessary to carry out the fraudulent agreement, it is most natural that the firm should have selected their bookkeeper and confidential friend to act as assignee, if, as the evidence in the record tends to show was the case, they knew he would further their purposes. One of his first acts as assignee was to put it out of the power of the appraisers to fairly value the property and assets that came to his hands, for he and his assignors so arranged and concealed the goods and fixtures and juggled inventories and price lists as to prevent a fair appraisement. The circumstances attending the advertisement and sale of the goods and fixtures to Henry Stern, could not have been accidental, and would not have prevailed without appellant’s assistance or connivance. No surer means could have been adopted to carry out the fraudulent scheme contemplated by his assignors and Henry Stern than those resorted to by appellant in procuring from the court, without notice to the creditors, and by a sup[708] pression of the true facts in respect to the value of the goods, the order of sale, and the illegal manner, of advertising and conducting the sale. In the petition filed by appellant for ‘ ‘ advice ’ ’ and to obtain of the court the order of sale, he admitted phenomenal sales of the assigned goods, and represented that he still had in the store “over $5,000” worth of goods which he wished to sell as “remnants, odds, and ends. ’ ’ When the petition was filed, he knew that the goods, fixtures, and accounts then in the store amounted in value to not less than $70,000. In addition, it appears from the record that appellant’s attorney who advised him in all matters connected with thfe assignment wrote the agreement in question. It further appears from the evidence that appellant did not file in the county court or clerk’s office an inventory of the assigned estáte, or schedule of the debts of his assignors. Prom all the .evidence before us we cannot doubt appellant’s knowledge of the fraudulent agreement, or his participation in its execution. If he did not know of the fraudulent agreement and the manner in which it was consummated, he was extraordinarily negligent, for the evidences thereof manifested themselves in his presence and in connection with his duties as assignee from the time of his appointment down to the beginning of this litigation in view of which his failure to detect it is inexplicable and unpardonable. In our opinion appellant should have realized a much larger sum from the sale of the goods and fixtures than he received.
Without adopting the estimate of any particular witness, we are satisfied that the great weight of the evidence is to the effect that the stock of goods sold by appellant to Henry Stern was at the time of the sale worth at cost prices not less than $50,000 and [709] the fixtures not less than $10,000, making the total value of goods and fixtures $60,000. Deduct from this amount 40 per cent., or $24,000, for depreciation in the value of the stock and fixtures, and the $15,000 received by appellant in the sale to Henry Stern, and there will be left $21,000 with which appellant is justly chargeable. In addition, he should be charged with $3,398.90, the commissions retained by him for services-rendered as assignee, making a total of $24,389.90, for which, with interest from July 5, 1900, appellee should have recovered judgment in the court below. No doctrine is better settled than that an assignee, or other trustee, in the management of the estate intrusted to him, is bound -to exercise the same care that an ordinarily prudent person would use in his own affairs under like circumstances, and for such losses, deficiencies, or injuries as may be occasioned by his affirmative or negative violation of this rule, and the duties it imposes, he is answerable for the loss thereby inflicted. Perry on Trusts, section 770; Pom. Eq. Juris, section 1070. In Pomeroy’s Equity Jurisprudence, section 1079, it is said: “It might be supposed that the term ‘breach of trust’ was confined to wilful and fraudulent acts which have a quasi criminal character, even if they have not been made actual crimes by statute. The term has, however, a broader and more technical meaning. It is well settled that every violation by a trustee of a duty which equity lays upon him,- whether wilful and fraudulent, or done through negligence, or arising through mere oversight or forgetfulness, is a breach of duty. ’ ’ Upon the facts furnished by the record before us, and under an application of the just rule above stated, appellant’s management of the estate intrusted to him was highly reprehensible, and such as to manifest bad [710] faith and gross misconduct, which this court cannot ignore or condone, even to the extent of allowing him compensation for any part of the services he claims to have rendered as assignee. The circuit court’s action in refusing him compensation was, therefore, proper, for a trustee guilty of fraud or misconduct in the management of the estate is not entitled to compensation. Perry on Trusts, section 919; 4 Cyc. 257.
We do not think appellant’s contention that he should have had a trial by jury of the questions of fact raised by the pleadings, is tenable. The Constitution secures to a litigant the right of trial by jury only in cases where such right existed at common law. O’Connor, etc., v. Henderson Bridge Co., 95 Ky. 643, 16 Ky. Law Rep. 244, 27 S. W. 251, 983; Ford v. Ellis, 56 S. W. 512, 21 Ky. Law Rep. 1838; Carder v. Weisenburgh, 95 Ky. 138, 23 S. W. 964, 15 Ky. Law Rep. 497; Reese’s Adm’r v. Youtsey, 113 Ky. 839, 69 S. W. 708, 24 Ky. Law Rep. 603. In view of expensive testimony having been taken by deposition in the case as prepared, it would have been an abuse of discretion on the part of the lower court to direct an issue out of chancery. Moreover, the action is not-one on appellant’s bond, but to settle his accounts as assignee. The issues o’f fact as to the questions of fraud and value were but incidental to the main purpose of the action, which was to compel an accounting and settlement of the assignee, and, the chancellor having exclusive jurisdiction thereof, such jurisdiction carried with it the power to decide all other issues raised, without the intervention of a jury.
Appellant’s contention that appellee Louisville Trust Company, trustee in bankruptcy, has no right to assert in this action the -claim in controversy, is without merit. Its right to do so was recognized by [711] the Supreme Court iu the case of Louisville Trust Company v. Comingor, 184 U. S. 184, 22 Sup. Ct. 293, 46 L. Ed. 413; and it would be an anomalous change of base to' permit appellant, after defeating appellee in the federal courts upon the ground that he has' the right to settle bis accounts as assignee in the State coiirt,' to insist that appellee cannot assert its right of action. against him in the latter court, where he forced it to go. Section 21, Civ. Code Prac., allows a trustee in bankruptcy to sue in his own name without joining the beneficiary. Manifestly, if in this case there should be a recovery against appellant, it should be applied to the'payment of the debts of Simonson, Whiteson & Co.; and the trustee in bankruptcy, as the representative of the firm’s creditors, would be and is entitled to receive it, for which reason it had the right to enter its appearance in the action .to assert its rights. In addition, appellee was expressly authorized by an order of the federal District. Court to sue and recover-of appellant the claim herein litigated, and section 47 of the bankruptcy act of 1898 (Act July 1, 1898, c. 541, 30 Stat. 557 [U. S. Comp. St. 1901, p. 3438], made it its duty to do so.
Appellant has no just ground of complaint to the action of the circuit court in overruling bis exceptions to the depositions of appellee. Under section 1008, Ky. St., and rule 12 adopted by the Jefferson circuit court, the depositions were properly taken upon interrogatories. As Simonson’s depositions seems to have been taken after the filing of the answer, and hot within 20 days from the service of summons, and he is not united in interest with appellee, and the deposition was not taken in his own behalf, under the rule in question it was properly admitted in evidence.
Appellant further complains that there does not [712] appear in the record the statutory affidavit purging appellee’s claim. Obviously the objection comes too late. The cause of action stated by appellee’s pleadings against appellant was complete without an allegation that payment of the claim sought to be recovered had been demanded of appellant before suit, or that such demand had been accompanied by the statutory affidavit as to the absence of usury, etc. Failure of the plaintiff to comply with the statutory requisition as to affidavit and demand must be objected to by the defendant before he interposes his defense on the merits of the ease by filing an affidavit showing that the preliminary proof and demand had not been made by the plaintiff, and then asking a rule against him to produce evidence of his compliance with the necessary prerequisites. If such evidence be not produced in response to the rule, the court will dismiss the action. Thomas’ Ex’r v. Thomas, 15 B. Mon. 182; Grough’s Adm’r v. Alvey & Co., 10 Ky. Law Rep. 590; Rigney v. Peely’s Adm’r, 13 Ky. Law Rep. 93; Cockrill v. Mize, 12 S. W. 1040, 11 Ky. Law Rep. 637; Rogers v. Mitchell’s Ex’r, 1 Metc. 24; Lyon’s Ex’r v. Logan County, 78 S. W. 454, 25 Ky. Law Rep. 1668. Appellant did not pursue the course above indicated, and, having allowed the case to proceed to judgment, he is estopped to complain of appellee’s failure to comply with the statutory requisition of affidavit and demand.
For the reasons indicated the judgment is affirmed on the original, and reversed on the cross, appeal, and cause remanded, with directions to the lower court to enter judgment in appellee’s behalf against appellant for $24,398.90, with interest from July 5, 1900; and for further proceedings consistent with this opinion.