McCann v. O'Brien

Neither the conduct of the plaintiff, nor the character of this action, is intended to appeal strongly to a court of equity. One of the first considerations of equity .is the limiting of the number of .actions, while the only practical result, should the plaintiff succeed here, is to reopen a litigation in which it is by no means clear that the equities are in favor of the plaintiff, or that any considerations .-of justice are involved. In November, 1879, the plaintiff, becoming ¡.financially involved, made a general assignment to the defendant for ¡the benefit of his creditors. Defendant was in the employ of Dun- ¡ ham, Buckley & Co., who were among the important creditors of the ¡plaintiff, and it was at the suggestion of this firm, to whom the assignment was offered, that the defendant was made the assignee. "The -assets consisted principally of the retail stock of goods in the . store conducted by the plaintiff, and a certain piece of real estate, which is not very material to be considered. Defendant took possession of the property, and about six weeks later plaintiff succeeded in •making a composition with his creditors for 33-J per cent., whereupon ¡■he asked his assignee to reassign the property. This the defendant, •■¡not having as yet advertised for claims of creditors, refused to do, ex- ■ cept upon the conditions (1) that the plaintiff give a satisfactory bond, ¡in the sum of $10,000, to indemnify him against any claims which might -be filed; (2) that the plaintiff would permit the defendant to •• retain his fees, aggregating, upon the estimated value of the assigned , property, $1,465.92; (3) that the plaintiff execute "a release to the de- ' fendant for all matters in connection with the assignment. These -.conditions were complied with, and the plaintiff was put into possession of the assigned property, though there was never any formal con- • veyance of the real estate, independent of the reassignment of the as- • ¡signee. Some time, after the reassignment, the plaintiff entered the -store of Dunham, Buckley & Co., and requested a Mr. Strain, who had ¡.kept the books for the defendant in the matters of the assignment, to ;;give him a statement of the account. This was done, and in the ■statement thus made of the disbursements appeared the matter «of $1,465.92 paid to the defendant as fees as assignee. When the «statement was handed to the plaintiff, it showed a balance due him ud£ something like $500. The plaintiff then said that Dunham, Buckley & Co. had been to considerable trouble in his behalf, and that lie desired to pay over to them a sum equal to the difference, between 33¿ per cent, ¡and 50 per cent.; and, upon the firm acquiescing in the proposition, the difference was figured out and charged to the plaintiff, the balance of $140.65 being paid by a check of Dunham, Buckley & Go., the plaintiff, giving his receipt in full of all demands to date. Sub

While it is true that under the provisions- of the statute, as construed by the courts, and correctly we believe, the defendant could not retain more than 5 per cent, upon the amount of money coming into his hands, where the rights of creditors are involved, there is no law which prevents the assignor agreeing to give a larger sum where the interests of creditors are no longer to be considered. “When one voluntarily consents to act as assignee,” say the court in Be Hulburt, supra, “he must either take what the law gives him, or, where the rights of creditors are not concerned, what the assignor agrees to give him.” In the case at bar, the creditors were no longer concerned. They had all been paid the amount agreed upon. The plaintiff was anxious to come into the possession of the property. There is no evidence that the defendant acted in bad faith in the matter; and, at most, there was a mistake as to the provision of law governing the amount of the fees. The plaintiff had received the benefits of the assignment. He had, by putting the property into the hands of the defendant, been able to compromise his debts for one-third,—a result which could not, in all probability, have been accomplished had it not been for the fact that the defendant could, under the law, prevent any attempt at recovery of any part of the indebtedness for a period of one year. Having had the benefits of this proceeding, he is hardly in a position to say that he was under duress because the defendant demanded what both at the time believed to be his legal fees as one of the conditions precedent to making a. reassignment of the property. That the defendant was called upon to close up the matter within a reasonable time is no doubt true, but there was no reason why he should reassign the property within a few days of the compromise agreement, and particularly when he had not discharged all of the duties incumbent upon him under the law. It was but the exercise of ordinary

All of the considerations of equity-and justice will be best served by affirming the judgment, with costs. ■ All concur.