Quimby v. Uhl , 130 Mich. 198 ( 1902 )

Grant, J.

(after stating the facts). if he above opinion so completely covers the case that little else need be said. Mr. Uhl, upon the execution of the assignment and its acceptance by him, became the trustee for the creditors •and Mr. Ichabod L. Quimby. As such it was his duty to ■dispose of the property, páy the debts, and, if anything remained, turn it over to Mr. Quimby. Under common-law assignments, the assignee has no right to continue to carry on a business without the authority of a court in chancery, or the assent of the creditors and the assignor. In this case both the assignor and the creditors unanimously assented, and both were therefore estopped to deny his authority. Wilhelm v. Byles, 60 Mich. 561 (27 N. W. 847, 29 N. W. 113).

When the creditors had been paid, the trust as to them was fully discharged. The purpose of the assignment had been accomplished. Mr. Ichabod L. Quimby was then ■entitled to his own. No retransfer of property was necessary to convey title to him. He could take possession of his own, and carry on the business in his own name. If he chose- to make an arrangement with Mr. Uhl, and Mr. Uhl assented, they were then the only ones interested. Steevens v. Earles, 25 Mich. 40, and cases there cited; Toms v. Williams, 41 Mich. 552 (2 N. W. 814); Wilkins v. Fitzhugh, 48 Mich. 78 (11 N. W. 814); Poole v. Munday, 103 Mass. 174. The assignment did not, after performing its purpose, bind either Mr. Quimby or Mr. Uhl. The moment the debts were paid, they were free to deal with the property and manage it as they saw fit. Mr. Quimby evidently desired to continue the business, which had been so profitable, in the name of Mr. Uhl as assignee. The purchase of property'was necessary to the ■continuance of the business, to effect which large sums of money would be required, which Mr. Quimby did not have. After the death of Mr. Quimby, his son, George, who liad been a manager with him, and for some time before his father’s death had been the substantial manager, continued the business in the same way, with the assent of all interested. The management was successful under him. Upon his death the complainant Mrs. Morley, who-was familiar with the business, considered herself capable of carrying it on successfully. It is more than probable-that she would have done so had the times continued prosperous. She was a woman of intelligence, of energy,, and of good business ability.

All the complainants lived together, close to the property, as members of one family. For nearly 20 years-they had lived out of the business, in comparative ease, if not luxury, during which time they had received the benefit of Mr. Uhl’s name, his advice, his indorsements, and money procured for them by him. The family during-these years drew out from the estate $77,741.88. Complainants do not seek to set aside Mr. Uhbs doings for the-first 14 years, but only when the times became depressed, and when he was away from home, in Washington and in Germany, in the service of the government. During-that time he wrote letters, wishing to be relieved; asking complainants, through Mrs. Morley, to pay the debts for-which he was liable, and relieve him from all responsibility. In other words, complainants wish to receive the-benefits from the business when it was a success, and to cast upon Mr. Uhl all the losses incurred in depressed times. The claim is without equity, and is unconscionable. Even though Mr. Uhl had carried on the business-in a way not strictly authorized by the authority conferred upon him, either as assignee or by the Quimbys, yet, having acted in good faith and with their assent, they cannot select those years in which he made a profit, receive the-benefit of that, and compel him to pay for the years when there was a loss. Thqy must take the bad with the good; and it is evident that, for 20 years during which this business was carried on, the profits exceeded the losses. In re Small’s Estate, 144 Pa. St. 293 (22 Atl. 809); Hoyt v. Sprague, 103 U. S. 613. Where beneficiaries either expressly or impliedly assent to the action of their trustee in managing their property not in strict accord with the terms of the trust, they will be held to have acquiesced in such action. See authorities above cited; also 11 Am. & Eng. Enc. Law, 841; Heyn v. O'Hagen, 60 Mich. 150 (26 N. W. 861). A party cannot complain when he has ■consented. Barton v. Gray, 57 Mich. 636 (24 N. W. 638).

It is hardly conceivable that complainants did not fully understand the situation. There can be no pretense that Mrs. Morley did not. That she knew her legal rights, ■clearly appears from her letters. Whether the other complainants had actual knowledge is immaterial. They were in position to know, and did know, that Mrs. Morley was running the business. When they filed this bill they ■did not ask to have the business closed up, but continued. One of the very purposes of filing the bill, according to its •allegations, was to prevent Mr. Uhl’s taking steps to close up the business and secure what was due him. One of their prayers was that a receiver be appointed, and that he be authorized to continue the business.

Decree is affirmed, with costs.

Hooker, C. J., Moore and Montgomery, JJ., concurred. Long, J., did not sit.