Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1912-03-27
RESCR|PTS
From Law Court in Two
Important Cases.
Trustee Not Indebted TO Com
pany for Bonds Sold.
Judgement for Insurance Co. in
Case Of Policy with Rider.

day, in two important cases that have
been under consideration by the law
court. The decision in both cases was
drawn by Chief Justice Whitehouse
In the Androscoggin county case of
George e. Carleton vs. Patrons andre
scoggin Mutual Fire ms. Co, judgment
is given for the insurance company
In the Oxford county cases of Petten-
gill, Andrews IL Co. and James II.
Kerr VS. Rangeley Light & Power Co.
and Charles G. Benson, trustee, the
trustee is discharged. Following is
the text of the two rescripts:
OXFORD COUNTY.
Pettengll, Andrews q Co. vs.
Rangeley Light & Power co. and
Charles c. Benson, trustee. James II.
Kerr, VS.. same
The plaintiff in each case filed a
statement alleging that c. c. Benson
named as. trustee, purchased of the
Rangeley Light & Power Company, the
defendant corporation, bonds issued by
that company Of the par value of $50
900 agreeing to pay therefor the sum
of $4,000, being at the rate of 80 cents
on the dollar, that in pursuance OF
such purchase Benson took delivery
of the bonds and paid the sum of $40
600 on account thereof that there is
still due from Benson to the defend
ant company on account OF the pur-
chase OF these bonds, the sum of $l7.-
Goa that Benson agreed with the de-
PENDANT company to purchase on the
same terms the remainder of the bonds
issued by the defendant company of
he. la,
that the sum of $27. 900 did not prove
sufficient in amount TO install and fin
ish the defendants plant then in pro-
cess of construction and that the
said Benson the alleged trustee has
not carried out the agreements or any
of them hereinbefore recited."
The question presented for the de-
termination of the court in these cases
is whether Benson was indebted to tho
defendant corporation for bonds de-
liNered to him as a purchaser by Yir-
tue of an absolute contract of sale
upon which the corporation might
have maintained an action for the
price of the bonds. If Benson had
agreed to purchase $4,000 of the bonds
and only $1,000 of them were actual
~ delivered to him. as a purchaser
his refusal to accept and pay for the
balance would simply be breach of
an eXeeutory contract, which might
afford a cause of action by the defend
ant company to recover unliquidated
damages. but would not render Ben
son chargeable as trustee for the price
of the bonds. His reasons for refus-
ing to carry out such an executory
contract would be obviously. imna-
terial in the cases now before the
court. But upon the question whether
these bonds were delivered to Benson
as purchaser or whether they were
delivered to him as treasurer only
ana thus legally remained in the pos
session of the corporation, the atti-
tude OF the plaintiff Kerr in regard to
them after Benson had refused to ac-
cept any more than the $1,000 used
by him as collateral, has considerable
significance. Kerr testifies that he UNI
derstood Benson to say that he had
bought 100000 of the bonds for $27,-
900 but after there had been a default
in the payment of the balance of his
claim, he employed counsel to collect
1t and il satisfactorily appears from
the uncontradieted testimony of Mr..
Benson that after being informed that
there was no money in the treasury
ne endeaVored to obtain some of these
ponds, as the property OF the corpor-
alton, at 80 cents on a dollar in pay
ment of the claim. 1t is also worthy
OF notice that the $1,000 of bonds
which President Elliott admits were
not sold to Benson do not appear to
nave been separated from the others
but were delivered into the custody
OF the treasurer with the $4,000 al
legged to have been sold, and remained
IN the company's safe-deposit box pre-
cisely the same as the others. And
finally it must be admitted that there
Is an element of improbability involv-
ed in the proposition that a business
corporation would sell and deliver
$4,000 of bonds of credit leaving the
time and conditions of payment to be
fixed by the purchaser.
After careful study of all the evil
dehce 1t is the opinion of the court
that Benson acquired title only to the
$1,000 Of bonds which he used as col
lateral and for which he accounted
10 the defendant corporation at 90
cents on dollar, and that at the time
OF the service of the trustee writs
upon him, he was not personally in
debted to the company for any bonds
sold and delivered to him. 1t is ad-
mitted that the small balance of $2,O6
was held by him as treasurer of the
corporation, and "a treasurer cannot
be charged as the trustee of his cor
poration for it's property in its official
custody for the reason that he is quoad
noe the corporation" Donnel VS..
Railroad Co. 70 Maine, 56z. The Ger