Kelley v. Weymouth , 68 Me. 197 ( 1878 )

AppletoN, C. J.

The trustee in this case disclosed a contract between him and the principal defendants, for cutting, hauling and driving logs, on which was due about nine hundred dollars. He further disclosed that the principal defendants took, without his knowledge or permission, a quantity of camp and logging' utensils; that, learning this fact, he called the defendants’ attention to it, and the matter was arranged between them, by the defendants allowing him for the utensils so taken the sum of one thousand dollars towards the contract for hauling the logs aforesaid.

It is obvious that the trustee’s liability depended upon the truth of the alleged settlement for the camp and logging utensils tortiously taken, and whether the same, if made, was made in good faith.

The pi’incipal defendants testified to the settlement as set forth in the disclosure of the trustee.

Allegations were filed against the allowance of this sum of a thousand dollars, in pursuance of K. S., c. 86, § 29.

The questions of fact arising under such allegations were by mutual consent submitted to the presiding justice, by whom they were determined. § 30.

The alleged settlement was impeached by its intrinsic improbability, arising from the trifling value of the camp and logging utensils as compared with the sum said to be allowed by the defendants lor the same. It was further impeached by the declarations of the defendants and of the trustee inconsistent with the truth of the statements respectively made by them.

The presiding justice, after weighing the disclosure of the trustee, and all the evidence adduced on the one side and the other, allowed the trustee what these articles wore reasonably worth, and charged him for the balance, to all which exceptions were duly alleged.

By Ii. S., c. 86, § 29, “ The answers and statements sworn to by a trustee-shall be deemed true, in deciding how far he is chargeable, until the contrary is proved ; but the plaintiff, defendant and trustee may allege and prove any facts material in deciding that question.”

By § 30, “ Any question of fact, arising upon such additional allegations, may, by consent, be decided by the court, or submitted to a jury in such manner as the court directs.”

The answer of the trustee, with the facts alleged and proved, are to be decided, by the tribunal to which they are submitted for determination, on the preponderance of testimony.

If the disclosure of the trustee contains a statement of improbable or contradictory facts, such improbability or contradictions are proper subjects for consideration in arriving at a conclusion. If, on the face of the disclosure, the falsehood of a part of the statements therein contained is apparent, upon comparison with other portions of the disclosure and with facts alleged and proved, the court or jury should act in accordance with their convictions thus derived from such comparison. No statute, no rule of law, requires court or jury to decide adversely to its own conclusions as to the facts in controversy. No statute, no rule of law, is to be found compelling any court or jury to determine that the balance of evidence is in favor of one party, when, on full consideration of the proofs adduced, it is satisfied that the balance is in favor of the other party.

“The unqualified declaration of a trustee, that he has no goods, effects nor credits of the principal defendant in his hand or possession,” observes Nice, J., in Moor v. Towle, 38 Maine, 133, “ will discharge him, unless there are such facts stated by him, or proved by other competent evidence, inconsistent with his declaration's, as will be found sufficient to overcome them.” In that case, as in this, such facts were found and the trustee was charged. In Porter v. Stevens, 9 Cush. 530, 536, Cushing, J., says : “ He (the trustee) is' to be charged or not, according as, on a just view of all the facts, the weight of evidence and of conviction shall fairly preponderate. . . He testifies under the ordinary obligations of an oath, in courts of law, and his testimony is to be weighed and its effects determined by the general principles on which conclusions are to be drawn from any other lawful evidence.” The presiding justice, giving to the answer of the trustee its just weight, and comparing it with the conflicting facts alleged and proved, and the contradictory statements of the trustee and the principal defendants adjudged the trustee, on the whole, chargeable, and in this there was no error.

Exceptions overruled.

Dickerson, Daneorth, Yirgin, Peters and Libbey, JJ., concurred.