In re SEABOARD ENGINEERING CO., Inc. WATSONTOWN DOOR & SASH CO. v. MANLY, 292 F. 106

McDOWELL, District Judge (after stating the facts as above). The present contention originated in a petition filed by the Sash Co. in the court below on December 18, 1922. Paragraph 4 of this petition reads: “

(4) That on September 15, 1920, without the knowledge or consent of your petitioner, the Park Heights Manor Development Company delivered its check to the order of the Seaboard Engineering Company, Inc., now the said bankrupt company, in the sum of $7,000 on account of retained percentage under the said contract of October 16, 1919, for the building of the said 20 houses. The said check on the same day was indorsed to the order of Albert J. Fleischman, to whom it was delivered, and your petitioner is advised, and now so avers that the said Albert J.

Fleischman retained $4,500 of the said $7,000, and paid to his father-in-law, one Lester Cohn, $2,500, the said Albert J. Fleischman and the said Lester Cohn being creditors of the said Seaboard Engineering Company, Inc.; that at the.time the said $7,000 was so paid, the Seaboard Engineering Company, Inc., the Park Heights Manor Development Company, the said Albert J.

Fleischman and the said Lester Cohn well knew that the said accepted order of July 19, 1920, in the sum of $9,000, given to your petitioner, as aforesaid, was outstanding, and that no part thereof had been paid.” In the answer of Manly, trustee, to the said petition, it is said: “

(4) In answer to the fourth paragraph of said petition, your respondent admits that on or about September 15, 1920, the Park Heights Manor Development Company, delivered its check to the order of the bankrupt in the sum of $7,000, which said cheek was indorsed over to Albert J. Fleischman or Lester Cohn. Tour respondent further admits that said $7,000 payment was intended to apply on account of retained percentage under the contract of October 16, 1919, mentioned in said fourth paragraph.

That your respondent has no further information with reference to the allegations of said fourth paragraph, and,prays strict proof thereof, excepting that he has always been advised by the said Albert J. Fleischman, mentioned therein, that he received no part of said $7,000, but received the check solely as the attorney and agent for another.” There is nothing on the subject of knowledge of the order of July 19, on the part of either Fleisthman or Cohn, in the agreed facts, or in any other part of the record. Nor is there any evidence that they obtained any part of the retained percentage as volunteers. M.. S.

Meyerhoff was the president of the Development Co. and he signed the acceptance of the order of July 19th, in favor of the Sash Co. The lower court dismissed the petition of the Sash Co., and this proceeding here is to obtain a review of that order.

Waiving all other questions, let it be assumed that the order of July 19th, and the acceptance thereof, to the amount of $9,000, impressed the retained percentage fund with a trust in favor of the Sash Co. as against the Development Co. and as against all other persons who, with knowledge of the said order of July 19th and of its acceptance, thereafter received any part of the retained percentage. See 3 Pomeroy’s Equity Jurisp. (4th Ed.) § 1280, p. 3081. Who paid the $3,000 which was received by Manly, trustee, in compromise of the two proceedings instituted by him, cannot be learned from the record before us.

It may have been wholly paid by the Development Co., or by Meyerhoff, or by Eleischman, or by Cohn. Or it may have been paid by some or all of them, in some entirely unknown proportions. If it was paid entirely by Fleischman or by Cohn, or by these two jointly, no part of said sum could possibly be held to be impressed with a trust in favor of the Sash Co. And this because there is no evidence that either Fleischman or Cohn had any knowledge or notice of the execution or of the acceptance of the $9,000 order of July 19th.

He who alleges the existence of a trust must, in such circumstances as exist here, prove the facts which create the trust. 39 Cyc. 532, 631; 28 Am. & Eng. Ency. (2d Ed.) 1120; Prevost v. Gratz, 6 Wheat. 481, 494, 5 L. Ed. 311; Gardner v. Whitford, 24 R. I. 253, 52 Atl. 1082, 1083; Waddell v. Waddell, 36 Utah, 435, 452, 104 Pac. 743; Lide v. American Guild, 69 S. C. 275, 277, 48 S. E. 222, 223; Foster v. Friede, 37 Mo. 36.

Assuming that every dollar of the $3,000 which may have been paid by the Development Co., or by Meyerhoff, or by both, in any proportion, would be impressed with a trust in behalf of the Sash Co., still, as has been said, every cent may have been paid by Eleischman or by Cohn or by these two jointly. In the absence of evidence that the $3,000 came from the Development Co., or from Meyerhoff, or from both, we are constrained to affirm the ruling of the trial court. The money in the hands of the trustee has certainly not been identified as any part of the retained percentage fund. Affirmed.