Opinion
Decided May 1, 1934.
A plaintiff by moving to charge the trustee upon the disclosure on file elects to stand upon the facts therein stated. Where in trustee-process substituted service had been made upon an insurance company as trustee by service upon the insurance commissioner, the company is not chargeable for a payment to the principal debtor made after such service of the process but without the company's knowledge thereof. Nor is such trustee chargeable if, upon learning of such service, it attempts in good faith and with due diligence, but unsuccessfully, to stop the payment of its check. Nor is such trustee chargeable because a letter was sent by the plaintiff to the trustee informing it of such process if the letter be so misdirected that the trustee's agent for whose attention the letter was intended does not receive it until after payment.
TRUSTEE-PROCESS, seeking to reach the proceeds of an insurance policy, due from the trustee, the John Hancock Mutual Life Insurance Company. Service as against the trustee was made upon the insurance commissioner; and the trustee paid the principal defendant after such service, but before it had knowledge thereof. When it learned the facts it attempted to stop payment of the check, but was unable to do so. It acted in good faith and with due diligence.
The plaintiff moved that the trustee be charged upon its disclosure setting out the facts recited. The court (Young, J.) ordered that the trustee be discharged, and allowed the plaintiff's bill of exceptions to the order.
Thereafter the plaintiff moved that the same be amended by stating that the plaintiff then offered to prove that her attorney sent a letter to the trustee, directed "attention of Mr. Stairs," giving advance information of the trustee-process. The trustee had no employee of that name, but had two employees each named "Stahr." This letter was "in due course received" by the party for whom it was intended after the claim had been paid. The court (Page, J.) granted the motion, "subject to approval of the supreme court."
James A. Broderick (by brief and orally), for the plaintiff.
Wyman, Starr, Booth Wadleigh (Mr. Booth orally), for the trustee.
The plaintiff, by moving to charge the trustee upon the disclosure on file, elected to stand upon the facts recited in the disclosure. Sise v. Drew, 18 N.H. 409.
The facts thus stated are that the trustee paid the principal defendant before it had knowledge of the substitute service upon the insurance commissioner, and that, when informed of the service, it in good faith and with due diligence attempted to stop payment of the check, but without avail. Upon these facts the trustee was entitled to a discharge. Landry v. Chayret, 58 N.H. 89, and cases cited.
The plaintiff's offer of proof concerning a letter attempting to notify the trustee of the pending process, if treated as a motion to reopen the case and introduce additional evidence, would not change the result. The plaintiff therein undertook to specify the name of the trustee's employee to whose attention the communication was directed. The name given varied substantially from that of the person the plaintiff had in mind, and before the puzzle had been solved in the trustee's office the payment had been made.
Exception overruled.