Keyser, Judah & Co., Appellants, vs. B. F. Simmons, et als., Appellees, 16 Fla. 268

Mk. Justice Westcott delivered the opinion of the court. It appears in this case that the insolvent debtors, on the 15th of December, A. D. 1874, suspended business and had a meeting of their principal creditors, among whom were the defendants, Keyser, Judah & Co.

The defendants admit that at said conference they 'were present, and that they, with the other creditors present, had a general consultation “ as to what steps should-be taken.” The plaintiffs allege that at said conference the insolvent debtors proffered to turn over for the benefit of all the creditors all their asset§, to which the creditors, including defendants, assented. They then state that after frequent conferences were held upon the basis of this understanding, and on the 26th of December, A.

D. 1874, a certain bill,, a part of the assets of the insolvent debtors, being due and'collectable in the city of New York, in pursuance of the understanding recited, was delivered to the defendants in trust that, said defendants for and in behalf of all the creditors should at once send the same to New York for collection, and when collected should order the funds sent -back to be retained by’ ■them in trust to be applied to the creditors; that said defendants collected said bill and now hold--the proceeds.

That at a meeting of the creditors on the 23d of January’, 1875, called for the purpose of indicating proper parties to act as assignees, the defendants being present, they, the plaintiffs, were elected such assignees.

That at said meeting a statement of the assets and liabilities was read ; that such statement of assets included the bill collected by defendants amounting to $1,500, as -well as set forth the amount of indebtedness of the insolvents to the defendants $3,295.16, and that the defendants signified assent to such statement by signing the same, and made no claim that the $1,500 was their exclusive property. Thereupon the insolvent debtors made a general assignment, naming plaintiffs the assignees.

That defendants, when subsequently called upon, refused to deliver said $1,500, and now claim to set off against it their debt of $3,295.16.

The defendants admit that they attended the first meeting, but allege that it was well understood that any party was to be free “ to reject any plan of settlement fixed upon to be submitted to the creditors at a future meeting, and that the same understanding existed as to attendance upon all subsequent meetings until a final acceptance of some definite plan, and that before the said day of assignment they never accepted any plan of settlement.” They acknowledge the receipt of the bill for $1,500 for collection, but deny that they were to hold the moneys in trust for the creditors.

The defendants in their answer, relating what occurred at the meeting at which the plaintiffs were elected assignees, admit “ that at a meeting of the creditors on or about the 23d day of January, A. D. 1875, called for the purpose of indicating proper parties as assignees, the said defendants being present, nominated parties to act as such assignees, which resulted in the election of complainants, and that at said meeting a statement of the assets and liabilities was read, and said statement included the said fifteen hundred dollars then in the hands of defendants, and set forth the amount of said O. L.

LeBaron & Son’s indebtedness to these defendants, to wit: $3,295.16, and defendants being present did not object to the same, and placed defendants’ signature against the statement of said indebtedness to said defendants, and made no claim at the time that the said fifteen hundred dollars was not general assets, as set forth in said statement and held by them in trust for all the creditors, and .properly included in the

schedule to be assigned to complainants.” The defendants in their answer also admit that the bill which they collected pending the conferences as to an assignment was transmitted to them by the insolvents in the following letter: “Pensacola-, Ela., December 26,1874. “ Messes. Keysee, Judah & Co.: - “Present—Dear Sirs: Hand you to collect for account of whom it may concern assets of C. L.' LeBaron & Son— “ Marquis & Co. on Rubina & Co.,‘N. Y., payable on delivery B. L. shp’t per Mausita...................$1,500.00 “ This is on account of what Marquis & Co. owe us, and it better be sent on to N. Y. at once.

The Mausita will be loaded next week. “ When collected, please order the funds out in currency by express, to be kept by you till .our settlement with creditors. Yoirrs truly, “C. L. LeBabon & Son. “ No entry of the above on our books, and will not be till we have settlement with creditors.” ■ These instructions the appellants,'without objection or dissent, proceeded to carry out, and did so far as to collect the bill. There was a replication to this answer, proofs, hearing, and decree for the sum of $1,500 and interest. It is unnecessary to state here the proofs.

The clear admissions contained in the answer dispose of the case. The first proposition made by_appellants here is based upon the idea that the bill alleges that there was an assignment made on the 26th December, 1874. The bill alleges that there was a meeting of creditors at that time to consider “ what steps should be taken ” in the interest of all the creditors, and the answer admits that the meeting was had to determine what was best to be done in the premises. The only assignment set up in the bill is that of 23d January, 1875, and the defendants admit that they assented to it.

So far as the letter of the insolvents enclosing the bill to defendants is concerned, its effect, according to. its plain terms, was to give the defendants the right to hold and have the possession of the funds until a settlement with their creditors. This assignment, with the approbation of defendants, was made for that purpose, and in view of the surrounding circumstances it was the time at which the right of the defendants to hold the money terminated. It makes no difference whether this is called a trust or a bailment. It is unnecessary to enter into the discussion of these questions.

We find the defendants attending the conference as creditors before this letter was written, taking an active part as to the matter of a general assignment, and collecting this bill under express directions looking to carrying out this general settlement. In addition to this, at the time the general assignment was made, they expressly admitted and affirmed that they held this bill as an asset of the firm. They are now estopped from alleging that to be false which they then under their hand admitted to lie true. The court properly treated this money as an asset of the firm.

There is nothing in the objection to the bill in this case ou the ground of multifariousness. The bill is brought by the assignees of an insolvent debtor to recover what is alleged to be an' asset of such debtor .for which the defendants are liable.

The plaintiffs, it is true, allege that they are creditors as well as assignees of the insolvent debtor, but. looking to the prayer of the bill and its general structure, it is apparent that the entire right and equity which they seek to assert is founded in their powers under the assignment, and that the allegation that they are creditors is simply by way of recital of tlieir full relations to the insolvent as well as to the defendants, there being no legal objection to the -union of the two relations of creditor and assignee in the same persons. .. ; The decree is affirmed.