Opinion
Opinion filed October 3, 1939. Opinion on motion for remand and new trial filed November 7, 1939.
Action for Rent — 1. Agent as Witness to Prove Parol Agency — 2. Testimony as to Agency Held Conclusion — 3. Consideration to Be Given Conclusion — 4. Conclusion as Justifying Finding — 5. Finding Constituting Conclusion — 6. Determining Status As Agent of Lessee or Assignee of Lease — 7. Assignment of Lease as Collateral Security — 8. Liability of Pledgee for Pledgor's Obligations — 9. Liability of Pledgee of Lease for Rent — 10. Assignee of Lease for Collateral Security as Agent for Assignor — 11. Assignment as Collateral Security May Be Absolute — 12. Where Treated as Absolute — 13. Assignment of Lease as Collateral Held Absolute — 14. Lease Assignable Though Assigns Not Used — 15. Provision Requiring Consent of Lessor to Assignment — 16. Right of Lessor to Waive Consent Requirement after Expiration of Term — 17. Bringing Suit for Rent as Affirmance of Assignment — 18. Right of Lessee to Invoke Invalidity of Assignment under P.L. 2599 — 19. Liability of Assignee of Lease on Covenant for Rent — 20. Instrument Treated as Assignment of Lease — 21. Newly Discovered Evidence as Ground for New Trial — 22. Rule as to Granting New Trial to Party Entitled to Expect Verdict — 23. Defendant Held Not Entitled to New Trial under Rule — 24. Supreme Court Rule 4, Par. 1, Affidavit by Counsel Required with Motion for New Trial — 25. Remanding Cause to Prevent Failure of Justice — 26. Provision in Assignment of Lease Held to Create Trust for Payment of Rent — 27. Formality of Expression Not Required to Create Such Trust — 28. Use of "Trust" or "Trustee" Not Necessary — 29. Lessor Held Entitled to Enforce Demand for Rent by Action at Law against Assignee — 30. Remand to Prevent Failure of Justice Not Required — 31. Lessor Not Estopped from Claiming Rent from Assignee — 32. Notice to and Assent by Lessor Not Essential to Creation of Trust.
1. Where it is claimed that an agency has been created by parol, the agent is a competent witness to prove his agency and its scope, but he must testify to facts, and not opinions or conclusions.
2. The testimony of the defendant in an action for rent that he acted as agent for the lessee was to be regarded as his conclusion.
3. Although inadmissible, a conclusion of a witness coming in without objection was for consideration by the trial court, but could not be given more than its legitimate probative effect.
4. When a witness is permitted without objection to testify to a conclusion which is not the legal result of the facts upon which it is based, the conclusion does not afford justification for a finding.
5. A finding of the trial court in an action for rent that the defendant was the agent of the lessee was itself only a conclusion as to the legal effect of the relationship between the defendant and the lessee when it was based upon defendant's testimony that he was such agent, and was to be disregarded if inconsistent with other findings which stated facts showing the relationship.
6. The circumstances under which the defendant in an action for rent came into possession of the leasehold premises were controlling upon the question of the capacity in which he acted when the plaintiff claimed that he was an assignee under an absolute assignment and the defendant, that he was the lessee's agent and that the leases were assigned to him as collateral security.
7. An assignment of a lease taken as collateral security, being a pledge, vests in the assignee only a special property, the general property remaining in the assignor.
8. A pledgee is entitled to possession but he does not, by virtue of the transaction, become liable for the pledgor's obligations with respect to the thing pledged.
9. The pledgee of leases assigned as collateral security would not, merely as a pledgee, be liable to the lessor for the stipulated rent.
10. There is nothing inconsistent in an assignment of a lease for collateral security and an agency on the part of the assignee for the assignor.
11. An assignment stated to be by way of collateral security is not necessarily prevented from being absolute, its intrinsic character being the determinative factor.
12. Where the debt for which a contract is assigned as security exceeds the sums that can be realized during the life of the contract, and the creditor is given authority to collect such sums and apply them to the diminution of his just demand, the assignment must be treated as absolute.
13. Where leases were assigned to secure a debt and nothing was left to be returned to the lessee after all the income during the existence of the leases had been collected and credited, the entire interest in the term passed to the assignee as if the assignment were in satisfaction or part satisfaction of the debt.
14. A lease is assignable even if the word "assigns" is not employed therein.
15. A provision in leases requiring the consent of the lessor to assignment, being for the lessor's benefit, might be waived by him and if he did not choose to take advantage of a failure to obtain such consent no one else could question the validity of the assignment on this ground.
16. An assignee of leases who gave the lessor no notice of the assignment could not claim that because the lessor did not know of it during the term of the leases there could thereafter be no waiver by the lessor of the provisions in the leases requiring his consent to an assignment.
17. The act of a lessor in bringing suit for a balance claimed to be due on rent against an assignee of leases after the expiration of the term was to be interpreted as an affirmance of the assignment though he had not given his consent thereto as required by the leases.
18. The invalidity of an assignment of a lease because it did not comply with the provisions of P.L. 2599 could not be invoked on behalf of the assignee to avoid liability for rent thereunder.
19. The words "yielding and paying" the stipulated rent used in leases expressed an implied covenant running with the land, and an assignee was liable thereon, on the ground of privity of estate, where he was in possession and had the right to possession.
20. An instrument, in form, and executed and recorded as, a mortgage of real estate, covering leases, given by the lessee and an assignee and purporting to secure a promissory note signed by the grantors, was treated as an assignment since it could not operate as a mortgage of real estate because the leases, being for terms of years, were personal property and since, viewed as a mortgage of personal property, it was defective in that it did not contain the affidavit required by P.L. 2661.
21. Evidence which was known to a party and within his power to produce at the first trial was in no sense newly discovered so as to warrant the granting of his motion for a new trial on that ground.
22. If upon the main facts in issue, the evidence stands so well that a party may well claim and expect a verdict, such party in asking for a new trial would deserve a different consideration from one who had not been active and efficient in producing such a state of the evidence in his own favor.
23. When the defendant in an action for rent relied upon his own testimony to prove that he was the agent of the lessee and not an assignee by an absolute assignment, the fact that both he (a member of the bar) and his counsel misapprehended the legal effect of the evidence upon this issue was not under the circumstances a sufficient reason for granting a new trial on the ground that the defendant had evidence which would prove he was merely the agent of the lessor under the rule applying when the party seeking a new trial was justified in expecting a favorable decision.
24. A motion to strike off a judgment in Supreme Court and remand the cause so that a new trial might be had was deficient as a motion for a new trial where it lacked the affidavit by counsel required by Supreme Court rule 4, par. 1.
25. The Supreme Court may in its discretion remand a cause to prevent a failure of justice.
26. A provision in an assignment of leases giving the assignee irrevocable authority to collect and use the rents and income from the demised premises for the purpose of paying the rent on the leases was construed as creating a trust of so much of the income as might be necessary to pay the rent, since the intent that the fund should be used for the designated purpose clearly appeared, the object and nature of the trust were shown with sufficient certainty and the beneficiary (the lessor), while not specifically named, was definitely ascertainable.
27. No particular formality of expression was required to create a trust for the payment of rent, of rents and income from leased premises, since the property was personalty.
28. It is not essential to the creation of a trust of personalty that the words "trust" or "trustee" should be used.
29. An assignee of leases under an assignment creating a trust of rent and income from the demised premises for the purpose of paying the rent specified in the leases partially executed the trust by proceeding to collect the income and paying part of the rent, and, when the leases expired and nothing was left but the payment of the balance of the rent, the lessor had the right to enforce his demand by an action at law.
30. A remand to prevent a failure of justice was not required when the party prevailing in Supreme Court would be entitled to prevail even though the evidence claimed to warrant a new trial were in the case.
31. The acceptance of checks signed by an assignee of leases as agent, and the giving of receipts made out to the lessee, would not estop a lessor, in the absence of knowledge of the true situation, from claiming that the assignee was liable for a balance due on rent under a provision in the assignment creating a trust of so much of the rents and income from the demised premises as was necessary for the payment of the rent specified in the assigned leases.
32. The validity of a trust for the payment of rent contained in an assignment of leases was not affected by the facts that the lessor had no notice of its creation and did not assent to it.
ACTION OF CONTRACT to recover rent claimed to be due under certain leases. Pleas, the general issue and that the defendant was the agent of the lessee. Trial by court in Montpelier municipal court, Arthur C. Theriault, Municipal Judge. Judgment for the defendant. The plaintiff excepted. After rendition of judgment for the plaintiff in Supreme Court the defendant moved to strike off the judgment and remand the cause for a new trial. The opinion states the case. Reversed and judgment for the plaintiff. Motion for remand and new trial denied.
H.C. Shurtleff for the plaintiff.
Finn Monti for the defendant.
Present: MOULTON, C.J., SHERBURNE, BUTTLES, STURTEVANT and JEFFORDS, JJ.
In this action the plaintiff seeks to recover rent claimed to be due from the defendant under certain leases covering a business block in the city of Montpelier. Judgment was for the defendant and the cause is here upon the plaintiff's exceptions to the findings of fact and to the judgment.
The premises were leased by the plaintiff to George B. Littlefield, and his heirs, executors, administrators and assigns, by three conveyances, under seal, one dated October 9, 1926, and the other two June 18, 1927, each of the three being for a different part of the building, but together covering all of it. They all expired on October 21, 1936. Each lease was expressed as "yielding and paying" a certain annual rent, by monthly installments, and contained a provision that Littlefield should not "lease or assign the said premises to any person except to a person to occupy the premises with said George B. Littlefield without the consent of" the plaintiff. The findings state that on March 24, 1928, Littlefield assigned the three leases to the defendant, as collateral security for an indebtedness to the latter of $26,000, but that it did not appear that the plaintiff consented to the assignments, or whether the assignments were in writing and recorded. On November 30, 1929, Littlefield moved away, and, so far as appears, has not since been heard from, and his whereabouts is unknown. On the day of Littlefield's departure the defendant took possession of the premises and paid to the plaintiff the rent then in arrears amounting to $866. Thereafter he sublet parts of the building, paid for repairs, and from the rents collected from the subtenants paid to the plaintiff the rents due under the leases to August 31, 1936, leaving at the end of the terms an unpaid balance of $308.33, which is the amount claimed in this action. The rents received, after deducting the cost of repairs and the payments to the plaintiff, were applied by the defendant upon Littlefield's indebtedness to him, and for his services. The indebtedness exceeded the sum thus received by the defendant, and, it is fairly inferable, any sum that he could have received, even if no deductions had been made. During all this time the defendant had no communication with Littlefield and no conversation or personal negotiation with the plaintiff concerning the leases, the assignment or the rents. The court found that the defendant has accounted to Littlefield for the monies received, and that in taking possession of the premises, paying for repairs, subletting and paying the rent to the plaintiff, the defendant acted as agent for Littlefield, and therefore held him not liable for the unpaid balance. It is to this finding that the plaintiff has excepted. The defendant criticizes the exception thereto as being indefinite, but we consider that it is sufficiently explicit to present the issue.
The defendant testified that he acted as agent for Littlefield, and that the leases were assigned to him as collateral security "with full power of attorney"; but whether this power of attorney was in writing or not did not appear, and nothing further was said about it. Where it is claimed that an agency has been created by parol, the agent is a competent witness to prove his agency and its scope. Northeastern Nash Automobile Co. v. Bartlett, 100 Vt. 246, 252, 136 A. 697; Hendrickson v. International Harvester Co., 100 Vt. 161, 166, 135 A. 702. But he must testify to facts, and not opinions or conclusions. Hendrickson v. International Harvester Co., supra, 167. In Young v. Newark Fire Ins. Co., 59 Conn. 41, 22 A. 32, 33, the testimony of a witness that he acted as agent for certain insurance companies in placing the policies in issue, was held to be "a question of law, depending upon the facts in the case and * * * to state no facts, but only the conclusion of the witness." In Schagrin v. Schagrin, 5 Boyce 318, 28 Del. 318, 92 A. 862, 864, a question whether the plaintiff's wife had authority to enter into a certain transaction with the defendant was held to call for a conclusion of law. In Commercial Standard Ins. Co. v. Rinn, 100 Colo. 76, 65 P.2d 705, 707, it was held that testimony that one was agent for the defendant did not establish such agency, but was a mere conclusion. Other decisions to the same effect are: Farrell v. United States, (8th Cir.) 110 Fed. 942, 943, 944; McCluskey v. Minck, 42 N.Y.S. 462, 463; Cameron v. Ayres, 175 Cal. 662, 166 P. 801, 802; Watkins Medical Co. v. Holloway, (Mo.App.) 181 S.W. 602, 604; McCornick v. Queen of Sheba Gold Mining, etc., Co., 23 Utah, 71, 63 P. 820, 822; Goddard Sons v. Garner, 109 Ala. 98, 19 So. 513, 514; Arnold v. Johnson, 60 Tex. Civ. App. 368, 128 S.W. 1186; Maurer v. Medway, 25 Neb. 575, 41 N.W. 395, 396; Larson v. Lombard Investment Co., 51 Minn. 141, 53 N.W. 179, 181; Chaplin v. Mutual Cash Guaranty Fire Ins. Co., 26 S.D. 632, 129 N.W. 238, 240, 241; Decker v. Lightfoot, 44 App. D.C. 45, 48.
It is clear, therefore, that the testimony of the defendant must be regarded as his conclusion, based upon the facts of the case. Although inadmissible, it was for consideration by the trial court, since it came in without objection. Streeter's Dependents v. Hunter, 93 Vt. 483, 484, 108 A. 394; Pocket v. Almon, 90 Vt. 10, 14, 96 A. 421; Taplin Rowell v. Harris, 88 Vt. 15, 21, 90 A. 956. But it cannot be given more than its legitimate probative effect; and where the conclusion is not the legal result of the facts upon which it is based, it does not afford justification for a finding. The finding of the trial court based thereon is only a conclusion as to the legal effect of the relationship between the defendant and Littlefield. See Gordon v. First Universalist Soc., 217 Mass. 30, 104 N.E. 448, 450. If it is inconsistent with the other findings which state the facts showing such relationship, it is to be disregarded. Greenwood v. Lamson, 106 Vt. 37, 42, 168 A. 915; Smith v. Vermont Marble Co., 99 Vt. 384, 396, 133 A. 355; Trask v. Karrick, 94 Vt. 70, 74, 108 A. 846; Bomhower v. Smith, 110 Vt. 290, 5 A.2d 925, 926. The circumstances under which the defendant came into possession of the leasehold premises thus become controlling upon the question of the capacity in which he acted. See Traveller's Ins. Co. v. Gebo, 106 Vt. 155, 164, 170 A. 917.
It is found that possession was taken under an assignment as collateral security; and an assignment of this nature, being a pledge, vests in the assignee only a special property, the general property remaining in the assignor. White River Savings Bank v. Capital Savings Bank Trust Co., 77 Vt. 123, 128, 59 A. 197, 107 A.S.R. 754; Island Pond National Bank v. Lacroix, 104 Vt. 282, 295, 158 A. 684, and cases cited. The pledgee is, of course, entitled to possession, but he does not, by virtue of the transaction, become liable for the pledgor's obligations with respect to the thing pledged — that is to say, in this instance, the defendant merely as pledgee of the leases would not be liable to the plaintiff for the stipulated rent. Biltmore Land Co. v. Munro's Est., 271 Mich. 125, 260 N.W. 135, 136; Krueger v. Campbell, 264 Mich. 449, 250 N.W. 285, 286; Treadway v. Western Cotton Oil, etc., Co., 40 Ariz. 125, 10 P.2d 371, 375; and see Smith v. Morin Bros., 233 App. Div. 562, 253 N.Y.S. 368, 370. Indeed, as Professor Williston says (2 Williston on Contracts, rev. ed. p. 1203) "This fact (assignment of a bilateral contract as collateral security) is enough to show a positive intention not to assume the burdens of the contract." So there is nothing inconsistent in an assignment for collateral security and an agency on the part of the assignee for the assignor.
But an assignment stated to be by way of collateral security is not necessarily prevented from being absolute. Its intrinsic character is the determinative factor. Todd v. Meding, 56 N.J. Eq. 83, 38 A. 349, 352; Killmer v. Nelson, 196 Minn. 420, 265 N.W. 293, 294, 295; Hughes v. Pump House Hotel Co., (1902) 2 K.B. 190, 194; Russell and Co. v. Austin Fryers (1909) 25 L.T. 414, 415; Burlinson v. Hall, 12 Q.B.D., 347, 349, 350. Where the debt for which a contract is assigned as security exceeds the sums that can be realized during the life of the contract, and the creditor is given authority to collect such sums and apply them upon the diminution of his just demand, the assignment must be treated as absolute. Brindze v. Atlantic City Policemen's Beneficial Association, 75 N.J. Eq. 405, 72 A. 435, 437, aff. 77 N.J. Eq. 272, 79 A. 686; Todd v. Meding, supra.
Such appears to be the case here. The character of the transaction between Littlefield and the defendant was such that the entire interest in the term passed to the latter. Nothing was left to be returned to the former after all the income during the existence of the leases had been collected and credited. Intrinsically then, the matter stands as if the assignment were in satisfaction, or part satisfaction, of the debt, passing title to the assignee. See Nathan, Admr. v. King, 51 Cal. 521, 522.
The lease was assignable, by its terms; as it would have been even if the word "assigns" had not been employed therein. Cooney v. Hayes, 40 Vt. 478, 482, 94 A.D. 425; Rickard v. Dana, 74 Vt. 74, 77, 52 A. 113. The only qualification of the right to assign was the necessity of obtaining the consent of the lessor, and this provision, being for the lessor's benefit, may be waived by him, and "if he does not choose to set it up, no one else can." Sexton v. Chicago Storage Co., 129 Ill. 318, 21 N.E. 920, 923, 16 A.S.R. 274; Chicago Attachment Co. v. Davis Sewing Machine Co. (Ill.) 25 N.E. 669, 671; Meyer Bros. Assignee v. Gaertner, 106 Ky. 481, 50 S.W. 971, 45 L.R.A. 513, 515; and see cases cited in note, 36 L.R.A. (N.S.) 488, 489. There is no specific finding that the plaintiff had knowledge of the assignment during the term of the leases. Indeed it may be otherwise inferred from the facts that Littlefield had disappeared and that the defendant and the plaintiff had no conversation or personal negotiations respecting the leases, assignments and rents. But having given the plaintiff no notice of the situation it would not rest with the defendant to say that because the plaintiff did not then know that the lease had been assigned there could thereafter be no waiver of the prohibition of assignment without consent. The circumstance remains that the plaintiff, after the expiration of the term, brought this suit to recover the unpaid balance which had accrued during the defendant's occupancy. It is a necessary inference that when this was done the plaintiff had been informed of the assignment and it is, therefore, to be interpreted as an affirmance thereof. See Clark v. Jones, 1 Denio, 516, 43 A.D. 706, 707, 708.
Again, there is no finding that the assignment was in the form prescribed by P.L. 2599. But its invalidity for this reason cannot be invoked on behalf of the assignee to avoid liability thereunder. Holton, Admr. v. Hassam, 94 Vt. 324, 329, 330, 111 A. 389; Sanders v. Partridge, 108 Mass. 556, 558, 559.
The finding that the defendant has accounted to Littlefield for the net rents received from the subtenants clearly means nothing more, in view of the finding that there had been no communication between them, than that such rents were credited by the former against the indebtedness of the latter.
The language of the leases ("yielding and paying" the stipulated rent) expresses an implied covenant running with the land; and the defendant, as assignee, is liable thereon, on the ground of privity of estate. Kimpton v. Walker, 9 Vt. 191, 198, 199. He was in possession of the leasehold (Overman Baxter v. Sanborn Co., 27 Vt. 54, 56; Congregational Society v. Rix, decided in 1889, but not officially reported, 17 A. 719) and, moreover, had the right to possession. University of Vermont v. Joslyn, 21 Vt. 52, 65; Pingry v. Watkins, 17 Vt. 379, 386; and see annotation, 52 L.R.A. (N.S.) 981.
The plaintiff's exceptions are sustained.
Judgment reversed, and judgment for the plaintiff to recover the sum of $308.83, with interest from October 21, 1936, and costs.
ON MOTION FOR REMAND AND NEW TRIAL.
MOULTON, C.J.
After the announcement of the foregoing decision the defendant has seasonably moved to strike off the judgment in favor of the plaintiff and to remand the cause so that a new trial may be had. The ground of the motion is that the defendant has evidence which, he alleges, will prove that he was in truth merely the agent for the lessee, and that the assignment of the leases was not absolute. This evidence was not introduced on trial because, as he says, he assumed that the fact of his agency was made to appear without dispute.
The basis of the contention, as set forth at length in the motion, includes the following documents: (1) A duly recorded assignment of 99/100 of the leases from George B. Littlefield to the Littlefield Piano Company, Inc., in consideration of the sum of $26,000 dated March 24, 1928; (2) An instrument, in form, and executed and recorded as, a mortgage of real estate, covering the leases, from George B. Littlefield and the Littlefield Piano Company, Inc., to the defendant, dated March 24, 1928, purporting to secure a promissory note of that date, signed by the grantors and payable to the order of the defendant on demand for the sum of $26,000. This instrument contains the following provision: "And in further consideration by these presents, we do give unto the said H. William Scott irrevocably full power for us, and in our name or names by writing or by several writings to demise, grant and rent all of those stores, shops, and tenements described in the aforesaid leases as to the said H. William Scott shall seem meet, and confirm to such person or persons, and during such term of years so that said lease or leases do not extend beyond the 20th day of October, A.D. 1936, with such reservations of rents, convenants, grants, agreements, and conditions to be contained in the said several writings as to the said H. William Scott shall seem expedient and also in the name of said corporation and individual to seal and deliver such writing or writings as its lease or leases and covenants of the same for it and me in its and my name to accept and receive; and to collect, have and use all of the rents and income from said property for the purpose of paying the rent on said leases and applying the balance on the note above mentioned, and described * * *"; (3) An assignment by the defendant to the People's National Bank of Barre, in consideration of $25,000, covering all the defendant's right, title and interest in the leases, "excepting and reserving unto myself the power of attorney granted in said deed"; (4) Certain checks drawn in payment of the rents due under the leases, signed "Littlefield Account, H. William Scott, Agent;" (5) Certain receipts, signed by the attorney for the plaintiff, acknowledging payment of rent by George B. Littlefield.
The motion refers to the conveyance from George B. Littlefield and the Littlefield Piano Company, Inc., to the defendant as an assignment, and we so treat it. Clearly it could not operate as a mortgage of real estate, because the leases, being terms for years, were personal property; and, viewed as a mortgage of personal property, it was defective in that it did not contain the affidavit required by P.L. 2661. The motion states that although all the assignments were made on March 24, 1928, they "were not acted upon or insisted upon by anyone until on or about the 30th day of November, 1929, over a year and a half after they were made." It is further alleged that the rentals which became due from the tenants during the remainder of the terms amounted to more than the debt of $26,000, to wit, $48,124, and that this fact, of which evidence is said to be available, indicates that the assignment was merely for collateral security, since the assignors retained an equity in the property assigned.
In substance and effect this is a motion for a new trial, and, considered as such, it is clear that it cannot be granted. The evidence now relied upon is in no sense newly discovered, since it was known to the defendant, and within his power to produce at the trial. Capital Garage Co. v. Powell, 97 Vt. 328, 330, 123 A. 200; Willard v. Norcross, 86 Vt. 426, 444, 85 A. 904. Neither does the case come within the rule stated in Gilman v. Nichols, 42 Vt. 313, 315, approved in State v. Maguire, 100 Vt. 476, 486, 138 A. 741, 746, that: "If upon the main facts in issue, the evidence stands so well that a party may well claim and expect a verdict, such party, in asking for a new trial, would deserve a different consideration from one who had not been active and efficient in producing such a state of the evidence in his own favor." The defendant relied upon his own testimony to prove the fact of his agency, and this testimony, as we have seen, was not enough to support the finding. He is a member of the bar, and the fact that both he and his counsel misapprehended the legal effect of the evidence upon this issue is not, under the circumstances, a sufficient reason for granting a new trial. MacDonald v. Orton, 99 Vt. 425, 432, 134 A. 599, and cas. cit.; Barrows v. Wilson, 97 Vt. 26, 27, 121 A. 440. The motion is also deficient in that it lacks the affidavit by counsel, as required by Supreme Court rule 4, par. 1. Picknell v. Fulton, 89 Vt. 51, 55, 94 A. 104; Willard v. Norcross, 86 Vt. 426, 443, 85 A. 904; Reynolds v. Hassam, 80 Vt. 501, 504, 68 A. 645.
We are asked, however, to remand this cause to prevent a failure of justice. We have the discretionary power to do this, and have done so in numerous instances where the advisability of such action has been made apparent by the record or otherwise called to our attention. Shea v. Pilette, 108 Vt. 446, 455, 189 A. 154, 109 A.L.R. 933, and cas. cit. But here the various assignments, while they may indicate that the defendant was the agent, not, as he claimed on the trial, for George B. Littlefield alone, but for Littlefield and the Littlefield Piano Company, Inc., and perhaps also for the People's National Bank of Barre, show also that he was clothed with another capacity. By the irrevocable authority given him by the assignment from Littlefield and the Littlefield Piano Company, Inc. he was directed "to collect, have and use all of the rents and the income from said property for the purpose of paying the rent on said leases." We construe this provision as creating a trust of so much of the income as might be necessary to pay the rent under the leases. Since the property is personalty, no particular formality of expression is required, the intent that the fund should be held and used for the designated purpose clearly appears, and the object and nature are shown with sufficient certainty. O'Brien, Admr. v. Holden, 104 Vt. 338, 346, 160 A. 192. The beneficiary (the lessor) while not specifically named, is definitely ascertainable. 1 Scott on Trusts, par. 112; Restatement of Trusts, par. 112. It is not essential that the words "trust" or "trustee" should be used. Foschia v. Foschia, 158 Md. 69, 148 A. 121, 122; Nelson v. Meade, 129 Me. 61, 149 A. 626, 628. By proceeding to collect the income and paying a part of the rent the defendant partially executed the trust and, when the leases expired and nothing was left but the payment of the balance due, the plaintiff had the right to enforce his demand by an action at law. Reed v. Hendee, 100 Vt. 351, 354, 137 A. 329; Stockwell v. Stockwell's Est., 92 Vt. 489, 492, 105 A. 30; Snyder v. Parmalee, 80 Vt. 496, 499, 68 A. 649; Downs et al. v. Down's Exr. et al., 75 Vt. 383, 384, 56 A. 9; Parker v. Parker, 69 Vt. 352, 354, 37 A. 1112; 2 Scott on Trusts, par. 198 (1); Restatement of Trusts, par. 198. Thus it appears that the plaintiff would be entitled to prevail in this action, even though the evidence set forth by the defendant were in the case. We conclude, therefore, that a remand is not required.
It seems unnecessary to point out that the acceptance of checks signed by the defendant as agent, and the giving of receipts made out to George B. Littlefield would not estop the plaintiff in the absence of knowledge of the true situation, which knowledge it is not claimed that he possessed. The validity of the trust was not affected by the facts that he had no notice of its creation, and did not assent to it. Conn. River Savings Bk. v. Albee's Estate, 64 Vt. 571, 574, 25 A. 487, 33 A.S.R. 944.
Motion for remand and new trial denied. Let full entry go down.