Thurm v. Wall

District of Columbia Court of Appeals

Thurm v. Wall

104 A.2d 835, 1954 D.C. App. LEXIS 138

CourtDistrict of Columbia Court of Appeals

DecidedMay 14, 1954

DocketNo. 1477

StatusPublished

Cited by1 cases

This text of 104 A.2d 835 (Thurm v. Wall) is published on Counsel Stack Legal Research, covering District of Columbia Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Thurm v. Wall, 104 A.2d 835, 1954 D.C. App. LEXIS 138 (D.C. 1954).

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Opinions

QUINN, Associate Judge.

This was originally a suit for unpaid rent instituted by Jacob Wall against J. W. Welch. On the date suit was filed Wall caused a writ of attachment before judgment¹ to be issued, on the ground-that’ Welch had removed his property with intent to defraud his creditors. Under the writ the sum of $210.06 was seized in the hands of Weschler, a local auctioneer. Welch filed a motion to quash the writ of attachment contending “that the assets held by Adam A. Weschler & Son in the name of [836]*836this defendant are proceeds from the sale of furniture and furnishings, upon which there is a chattel deed of trust in the approximate balance of $590. The holder of the chattel deed of trust, through her agent Everett W. Thurm, authorized this defendant to sell the chattels thereby secured and agreed to accept whatever amount was realized thereby in full settlement of the outstanding balance of the chattel deed of trust, even though the sum realized from such sale was less than $590, which chattels were sold through Adam A. Weschler & Son for the net sales price of approximately $210.” The motion to quash the writ was denied, and thereafter Thurm, appellant herein, filed a petition² to the answer of Weschler, contending that the funds held by Weschler were not subject to attachment as money belonging to Welch.

At the hearing on his petition Thurm testified in substance to what was set forth by Welch in his motion to quash the writ of attachment. Welch corroborated his statements. He further stated that he did not inform the auctioneer that the sale was for the benefit of anyone other than himself, and “when he picked-up the proceeds he would have immediately paid it over to the claimant herein as agreed upon, and had he been paid by check he would have requested such check to be drawn to the order of the claimant herein.” The trial judge found in favor of Wall on Thurm’s claim, and this appeal followed.

Thurm contends that the trial court erred as a matter of law in not finding that Welch was merely a trustee of the funds involved, or, in the alternative, that Welch was his agent in disposing of the furnishings. As the alleged agreement between Thurm and Welch was admittedly oral, and not evidenced by a writing in any manner, Thurm is contending that the rights of the creditor Wall should be defeated by a parol trust agreement. In Chiswell v. Johnston, 55 App.D.C. 3, 299 F. 681, it was held that such verbal trusts are without force or effect to defeat the rights of third parties under our local statute of frauds,³ and that such agreements must be in writing. Thus the court below was correct in refusing to hold that such a trust was enforceable against Wall.

As to the alternative argument that Welch was Thurm’s agent as a matter of law, we rule that such a finding was within the province of the trial judge. Under the Code section, permitting a claimant to intervene, the trial court is instructed to inquire into the claim and to make such orders as may be necessary to protect the claimant’s rights. A full hearing was had and as the court ruled against Thurm it evidently felt that the alleged agency relationship did not exist in fact. It was within the trial judge’s province to weigh the self-serving testimony of Thurm and Welch against the facts that no written evidence of this alleged agreement existed, or that the auctioneer was never informed that Welch was merely acting as Thurm’s agent in this matter.

Affirmed.

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QUINN, Associate Judge.

This was originally a suit for unpaid rent instituted by Jacob Wall against J. W. Welch. On the date suit was filed Wall caused a writ of attachment before judgment¹ to be issued, on the ground-that’ Welch had removed his property with intent to defraud his creditors. Under the writ the sum of $210.06 was seized in the hands of Weschler, a local auctioneer. Welch filed a motion to quash the writ of attachment contending “that the assets held by Adam A. Weschler & Son in the name of [836]*836this defendant are proceeds from the sale of furniture and furnishings, upon which there is a chattel deed of trust in the approximate balance of $590. The holder of the chattel deed of trust, through her agent Everett W. Thurm, authorized this defendant to sell the chattels thereby secured and agreed to accept whatever amount was realized thereby in full settlement of the outstanding balance of the chattel deed of trust, even though the sum realized from such sale was less than $590, which chattels were sold through Adam A. Weschler & Son for the net sales price of approximately $210.” The motion to quash the writ was denied, and thereafter Thurm, appellant herein, filed a petition² to the answer of Weschler, contending that the funds held by Weschler were not subject to attachment as money belonging to Welch.

At the hearing on his petition Thurm testified in substance to what was set forth by Welch in his motion to quash the writ of attachment. Welch corroborated his statements. He further stated that he did not inform the auctioneer that the sale was for the benefit of anyone other than himself, and “when he picked-up the proceeds he would have immediately paid it over to the claimant herein as agreed upon, and had he been paid by check he would have requested such check to be drawn to the order of the claimant herein.” The trial judge found in favor of Wall on Thurm’s claim, and this appeal followed.

Thurm contends that the trial court erred as a matter of law in not finding that Welch was merely a trustee of the funds involved, or, in the alternative, that Welch was his agent in disposing of the furnishings. As the alleged agreement between Thurm and Welch was admittedly oral, and not evidenced by a writing in any manner, Thurm is contending that the rights of the creditor Wall should be defeated by a parol trust agreement. In Chiswell v. Johnston, 55 App.D.C. 3, 299 F. 681, it was held that such verbal trusts are without force or effect to defeat the rights of third parties under our local statute of frauds,³ and that such agreements must be in writing. Thus the court below was correct in refusing to hold that such a trust was enforceable against Wall.

As to the alternative argument that Welch was Thurm’s agent as a matter of law, we rule that such a finding was within the province of the trial judge. Under the Code section, permitting a claimant to intervene, the trial court is instructed to inquire into the claim and to make such orders as may be necessary to protect the claimant’s rights. A full hearing was had and as the court ruled against Thurm it evidently felt that the alleged agency relationship did not exist in fact. It was within the trial judge’s province to weigh the self-serving testimony of Thurm and Welch against the facts that no written evidence of this alleged agreement existed, or that the auctioneer was never informed that Welch was merely acting as Thurm’s agent in this matter.

Affirmed.

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104 A.2d 835, 1954 D.C. App. LEXIS 138, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thurm-v-wall-dc-1954.

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