{
  "id": 4747837,
  "name": "Kaufman Hexter v. Joseph E. Loughry et al.",
  "name_abbreviation": "Hexter v. Loughry",
  "decision_date": "1880-05-25",
  "docket_number": "",
  "first_page": "362",
  "last_page": "366",
  "citations": [
    {
      "type": "official",
      "cite": "6 Ill. App. 362"
    }
  ],
  "court": {
    "name_abbreviation": "Ill. App. Ct.",
    "id": 8837,
    "name": "Illinois Appellate Court"
  },
  "jurisdiction": {
    "id": 29,
    "name_long": "Illinois",
    "name": "Ill."
  },
  "cites_to": [
    {
      "cite": "21 Ill. 194",
      "category": "reporters:state",
      "reporter": "Ill.",
      "case_ids": [
        2599514
      ],
      "opinion_index": -1,
      "case_paths": [
        "/ill/21/0194-01"
      ]
    },
    {
      "cite": "19 Ill. 88",
      "category": "reporters:state",
      "reporter": "Ill.",
      "case_ids": [
        441655
      ],
      "opinion_index": -1,
      "case_paths": [
        "/ill/19/0088-01"
      ]
    },
    {
      "cite": "17 Ill. 505",
      "category": "reporters:state",
      "reporter": "Ill.",
      "case_ids": [
        2594182
      ],
      "opinion_index": -1,
      "case_paths": [
        "/ill/17/0505-01"
      ]
    },
    {
      "cite": "88 Ill. 49",
      "category": "reporters:state",
      "reporter": "Ill.",
      "case_ids": [
        5336639
      ],
      "opinion_index": -1,
      "case_paths": [
        "/ill/88/0049-01"
      ]
    },
    {
      "cite": "4 Gilm. 40",
      "category": "reporters:state",
      "reporter": "Gilm.",
      "case_ids": [
        2562055
      ],
      "opinion_index": -1,
      "case_paths": [
        "/ill/9/0040-01"
      ]
    },
    {
      "cite": "41 Ill. 241",
      "category": "reporters:state",
      "reporter": "Ill.",
      "case_ids": [
        5217276
      ],
      "opinion_index": -1,
      "case_paths": [
        "/ill/41/0241-01"
      ]
    },
    {
      "cite": "20 Ill. 650",
      "category": "reporters:state",
      "reporter": "Ill.",
      "case_ids": [
        2597264
      ],
      "opinion_index": -1,
      "case_paths": [
        "/ill/20/0650-01"
      ]
    },
    {
      "cite": "78 Ill. 449",
      "category": "reporters:state",
      "reporter": "Ill.",
      "case_ids": [
        824061
      ],
      "opinion_index": -1,
      "case_paths": [
        "/ill/78/0449-01"
      ]
    },
    {
      "cite": "82 Ill. 308",
      "category": "reporters:state",
      "reporter": "Ill.",
      "case_ids": [
        5315190
      ],
      "opinion_index": -1,
      "case_paths": [
        "/ill/82/0308-01"
      ]
    },
    {
      "cite": "20 Wall. 520",
      "category": "reporters:scotus_early",
      "reporter": "Wall.",
      "case_ids": [
        3393296
      ],
      "opinion_index": -1,
      "case_paths": [
        "/us/87/0520-01"
      ]
    },
    {
      "cite": "92 U. S. 161",
      "category": "reporters:federal",
      "reporter": "U.S.",
      "case_ids": [
        8729
      ],
      "opinion_index": -1,
      "case_paths": [
        "/us/92/0161-01"
      ]
    },
    {
      "cite": "44 Conn. 338",
      "category": "reporters:state",
      "reporter": "Conn.",
      "case_ids": [
        750375
      ],
      "opinion_index": -1,
      "case_paths": [
        "/conn/44/0338-01"
      ]
    },
    {
      "cite": "9 Met. 517",
      "category": "reporters:state",
      "reporter": "Met.",
      "case_ids": [
        1966141
      ],
      "opinion_index": -1,
      "case_paths": [
        "/mass/50/0517-01"
      ]
    },
    {
      "cite": "1 Johns. 165",
      "category": "reporters:state",
      "reporter": "Johns.",
      "case_ids": [
        2128263
      ],
      "opinion_index": -1,
      "case_paths": [
        "/johns/1/0165-01"
      ]
    },
    {
      "cite": "87 Ill. 282",
      "category": "reporters:state",
      "reporter": "Ill.",
      "opinion_index": -1
    },
    {
      "cite": "9 Metc. 517",
      "category": "reporters:state",
      "reporter": "Metc.",
      "opinion_index": 0
    }
  ],
  "analysis": {
    "cardinality": 478,
    "char_count": 8390,
    "ocr_confidence": 0.532,
    "pagerank": {
      "raw": 1.2240919645422112e-07,
      "percentile": 0.6014402770200116
    },
    "sha256": "1c5a7d63ee7580ad79d9aabcc3b878df0e2b8689585f3bbe619f5de09ccee09e",
    "simhash": "1:152da5f28ed290b6",
    "word_count": 1506
  },
  "last_updated": "2023-07-14T20:46:27.659948+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "Kaufman Hexter v. Joseph E. Loughry et al."
    ],
    "opinions": [
      {
        "text": "Wilson, J.\nThis was an action of assumpsit brought by appellees against appellant for moneys had and received. The declaration contains the common counts only, to which there was a plea of the general issue. The case was submitted to the court for trial, without the intervention of a jury. The court rendered a judgment in favor of the plaintiff for \u00a7218.80, and the defendant brings the case here by appeal.\nEmil Solomon, of Chicago, was indebted to Tiedman & Co., of St. Louis, in a considerable amount, and also to appellees, Loughry & Co., who were millers at Monticello, Indiana, in about the sum of \u00a7760; to appellant, Hexter, in the sum of $500; and to Jonathan B. Bailey in the sum of \u00a7600. In January, 1878, Tiedman & Co. sent an agent to Chicago to collect their claim, who, being about to take possession of all of Solomon\u2019s property, Hexter, Loughry, Bailey and Solomon had a meeting to devise some plan by which the claim of Tiedman & Co. could be compromised, and Solomon continued in business, and pay off the last named creditors from the proceeds of his outstanding accounts, which it was thought would be sufficient to satisfy them in full. The claim of Tiedman & Co. was compromised at \u00a71,250, which amount was procured mainly upon the credit of appellant, and the claim was paid off. Thus far there is no disagreement as to the facts.\nAppellees contend that it was further agreed that Hexter should take possession of and collect Solomon\u2019s accounts, and out of the proceeds retain enough to pay the $1,250 advanced by him, and distribute the remainder pro rata between appellees, Bailey and himself, in proportion to their respective demands against Solomon.\nOn the other hand, appellant denies that he was to have anything to do with the collection of the accounts, or to be in any way responsible therefor, but that Solomon was to collect the accounts, and out of the proceeds to pay first Hexter the $1,-250 advanced to Tiedman & Company, and then the $550 due to Hexter, being for moneys loaned by Solomon to him; that the remainder of the proceeds Solomon was personally to pay over to loughry & Co. and Bailey, on their claims.\nIn the view we take of the case, it is unnecessary to decide this disputed question of fact, since if it be conceded that the proof establishes the state of the case contended for by appellees rather than that claimed by appellant, we are of the opinion that a court of law has no jurisdiction of the subject matter of the suit. Appellee Loughry testifies that as fast as Solomon collected the accounts, he was to deposit them with Hexter, to be applied first to the extinction of the Tiedman claim, and after that to apply on the claims of Bailey, Hexter and Loughry & Co. Bailey swears, \u201c Hexter received the accounts in trust, as I understood it. * * * Solomon was to collect the accounts, place them in Hexter\u2019s hands, who was to take up our notes \u201d (referring to certain notes made by the parties -r.s collateral to Hexter\u2019s note, upon which money was borrowed to payoff the claim of Tiedman & Co.); \u201c balance of the money to be applied on Solomon\u2019s indebtedness to Loughry & Co., Hexter and myself, until settled.\u201d If this, as is claimed by appellees, was the agreement between the parties, it created a trust fund for the benefit of- Loughry & Co., Hexter and Bailey, in respect to which Hexter occupied the position of trustee, and Loughry & Co., Hexter and Bailey, that of ceshds que trust. By receiving and holding the money in trust for the benefit of Solomon\u2019s creditors, Hexter became pro hae mee, the assignee of Solomon\u2019s estate to pay his debts according to the terms of the trust, and it is quite immaterial whether Hexter personally collected the accounts or whether they were collected by Solomon, and the money by him paid over to Hexter. The money when received was vested in Hexter for the purposes of the trust.\nWe understand the general rule to be well settled, that an assignee to pay debts cannot be sued at law by a creditor to recover his proportionate part of the proceeds of the estate, until a dividend has been declared, and a refusal on the part of the assignee to pay. Bishop on Insolvent Debtors, \u00a7 343.\nIf the assignee neglect to execute the trust, or to account or make distribution, a creditor may proceed against him by suit to compel an account or distribution, and the appropriate remedy in such cases is by bill in equity. Burrill on Assignments, \u00a7 491, 3d Ed. In Jose v. Roberts, Holt, N. P. C. 500, Burroughs, J., says: \u201c If money is paid into the hands of a trustee for a specific purpose, it cannot be recovered in an action for money had and received. If the plaintiff shows the specific purpose has been satisfied, that it has absorbed a certain sum only, and left a balance, such balance \u2014 the trust being closed \u2014may be recovered at law. While the matter remains in account and is charged with the specific trust, the action for money had and received will not lie.\u201d\nIn a suit at law by a single creditor, it is impossible for the court to settle the claims of conflicting creditors, and adjust the respective amounts to be paid to each of them. If a dividend has been declared, and each creditor\u2019s share or dividend has been set apart by the assignee of the fund, the share thus set apart ceases to be a part of the trust fund, and becomes money in the hands of the assignee for the use of the creditor for whom it has been set apart, and which the assignee cannot in equity and good conscience retain; and the creditor may sue for it in an action at law. Ho conflicting claims in such case remain to be adjusted. Ho other creditor is interested in the dividend thus set apart. The only persons concerned are the assignee or trustee, and the creditor. Fitch v. Workman, 9 Metc. 517.\nIn the present case, three several creditors claim, in conflicting rights, an undivided share in the fund in proportion to their respective demands against Solomon, from whom the fund came, and by whom the trust was created. The fund is still in Hexter\u2019s hands, subject to the specific purpose for which it was received by him. Appellees are not the only persons interested in the fund; Hexter, Bailey and Solomon, also have an interest therein. Hexter has not adjusted the respective amounts to be paid to each, nor could he do so without the concurrence of all. If appellees can recover, Bailey can in turn sue Hexter for his pro rata share, and he would not be concluded by the finding of the court as to the amount due to him in the present suit to which he was not a party. But the court was necessarily compelled to determine the amount due to Bailey in order to determine appellee\u2019s share of the funds in Hexter\u2019s hands. The only remedy was by a bill in equity, in which the court could ascertain and settle the conflicting claims of all the beneficiaries of the fund, and distribute the same according to their respective rights. As was said in Case v. Roberts, \u201c The action for money had and received must not be turned into a bill in equity.\u201d",
        "type": "majority",
        "author": "Wilson, J."
      }
    ],
    "attorneys": [
      "Mr. Jacob Newman, for appellant;",
      "Mr. L. W. Perce, for appellees;"
    ],
    "corrections": "",
    "head_matter": "Kaufman Hexter v. Joseph E. Loughry et al.\nAssignee to pat debts \u2014 Suit for dividend. \u2014 An assignee to pay debts cannot be sued at law by a creditor to recover his proportionate part of the proceeds of the estate until a dividend has been declared, and a refusal on the part of the assignee to pay.\nAppeal from the County Court of Cool? county; the Hon. Mason B. Loomis, Judge, presiding.\nOpinion filed May 25, 1880.\nMr. Jacob Newman, for appellant;\nthat only a court of equity had jurisdiction to enforce execution of the trust, cited 1 Perry on Trusts, \u00a7 82; Hall v. Crane, 87 Ill. 282.\nAn assignee to pay debts cannot be sued at law: Bishop on Insolvent Debtors, \u00a7343; 2 Perry on Trusts, \u00a7 594; Burrill on Assignments, \u00a7 491; Peck v. Randall, 1 Johns. 165; Case v. Roberts, Holt\u2019s N. P. 500; Fitch v. Workman, 9 Met. 517; Douglass v. Skinner, 44 Conn. 338; Terry v. Tubman, 92 U. S. 161; Pollard v. Bailey, 20 Wall. 520; Mills v. Scott, 8 Law Rep. ; Low v. Buchanan, 1 Ill. Syn. Rep. 351.\nMr. L. W. Perce, for appellees;\nthat the action can be maintained, cited Maxwell v. Longnecker, 82 Ill. 308; Belden v. Perkins, 78 Ill. 449; Taylor v. Taylor, 20 Ill. 650; Watson v. Wolverton, 41 Ill. 241; Prather v. Vineyard, 4 Gilm. 40; Walden v. Carr, 88 Ill. 49; Eddy v. Roberts, 17 Ill. 505; Brown v. Strait, 19 Ill. 88; Bristow v. Lane, 21 Ill. 194."
  },
  "file_name": "0362-01",
  "first_page_order": 360,
  "last_page_order": 364
}
