Summary
In Travers v. Deaton, 107 N.C. 500, it is said of paragraph 2 of section 291 of The Code: "This provision is plain and very comprehensive in its terms and purpose. It intends, certainly, to embrace all cases where the relation of trust and confidence in respect to money received by or personal property in the possession of one party for the benefit of another is raised and exists between such parties by reason of their contract, express or implied.
Summary of this case from Boykin v. MaddreyOpinion
September Term, 1890.
Arrest and Bail — Motion to Vacate Order — Affidavits — The Code — Agency — Fiduciary Capacity — Findings of Fact by the Court.
1. In arrest and bail proceedings, a motion was made by the defendant to vacate the order of arrest. The court found that the facts were sufficient to sustain the order: Held, that the findings of fact by the court below are final, and will not be reviewed by this Court unless it be objected properly that there was no evidence to support them.
2. The Code, section 291, par. 2, referring to parties liable to arrest, is intended to embrace all cases where the relation of trust and confidence in respect of money received or personal property in possession by one party for the benefit of another is raised by contract.
3. Where the defendant agreed to receive and sell for plaintiff, for cash, and on time, certain guano described, himself becoming liable and indebted for its value at an agreed price, accounting and turning over to plaintiff the guano unsold and the proceeds of all sales: Held, (1) this constituted a fiduciary relationship embraced by The Code, sec. 291, par. 2; (2) if the defendant has converted such funds to his own use, he is liable to arrest.
MOTION to vacate an order for arrest of the defendant in arrest and bail proceedings, heard by McCorkle, J., at Dobson, in SURRY, at chambers, during the August Term, 1890, of SURRY.
W. C. Douglass for plaintiffs. (503)
R. B. Glenn for defendant (appellant).
This is an action at law, and hence we have no authority to review the findings of fact by the court below. Such findings are final, and must be accepted here as warranted by competent evidence, unless it should be objected in a proper way that there was no evidence to support the findings, or one or more of them. We can only review questions and matters of law in such cases arising upon the facts as found. Burke v. Turner, 85 N.C. 500; Hale v. Richardson, 89 N.C. 62; Young v. Rollins, 90 N.C. 125; Coates v. Wilkes, 92 N.C. 376, and there are many other like cases. If the appellant intended to insist that there was no evidence of fraud, he should have excepted on that ground, and sent up the evidence, so that we might determine its character.
The statute (Code, sec. 291, par. 2) provides, among other things, that a defendant may be arrested "in an action . . . for money received, or for property embezzled or fraudulently misapplied . . . by any factor, agent, broker or other person in a fiduciary capacity," etc. This provision is plain and very comprehensive in its terms and purpose. It intends, certainly to embrace all cases where the relation of trust and confidence in respect to money received by, or personal property in the possession of, one party for the benefit of another, is raised and exists between such parties by reason of their mutual contract, express or implied. The purpose is to give the more efficient remedy where the cause of action involves a breach of trust on (504) the part of the defendant sustaining a fiduciary relation to the plaintiff.
Now, the defendant expressly agreed, for a sufficient consideration, that he would hold any of the unsold fertilizers mentioned, and all the proceeds of such as he should sell, in trust for the benefit of the plaintiffs in the payment of his debt to them, and further, to deliver to the plaintiffs the notes he might take from planters and others for such fertilizers sold to them by him, and to apply all proceeds of such notes as collected to the payment of his debt to the plaintiffs, whether the same had matured or not, to the extent such proceeds might be necessary for the purpose specified. The defendant, in his contract with the plaintiffs in respect to the fertilizers he bought from them, assumed, in a sense, an agency of them in respect thereto — he agreed that he would owe them for the same, and apply the proceeds of the sale thereof to the payment of his debt to them; that he would hold the notes and money he received on such account in trust for them for the purpose specified. As soon as he sold the fertilizers and received notes or money for the same he was at once charged with a trust as to the same in favor of the plaintiffs. The contract embraced, and the consideration thereof supported and made binding, all the material stipulations contained therein. So that, accepting the facts as found in connection with the agreement in writing, it is clear that the defendant might be arrested in this action for the alleged breach of his fiduciary relation to the plaintiffs. Chemical Co. v. Johnson, 98 N.C. 123; Powers v. Davenport, 101 N.C. 286; Guano Co. v. Malloy, 104 N.C. 674.
Affirmed.
Cited: Parker v. McPhail, 112 N.C. 505; Boykin v. Maddrey, 114 N.C. 98; Fertilizer Co. v. Grubbs, ib., 472; Hinsdale v. Underwood, 116 N.C. 594; Fertilizer Co. v. Little, 118 N.C. 817; Grocery Co. v. Davis, 132 N.C. 98; Stokes v. Cogdell, 153 N.C. 182; State's Prison v. Hoffman, 159 N.C. 568; Lumber Co. v. Buhmann, 160 N.C. 387; Gilmore v. Smathers, 167 N.C. 443; Drewry v. Bank, 173 N.C. 666.
(505)