This court can perceive no error in the judgment of the court below.
The plaintiffs nowhere make a suggestion of any fraud on the part of the master, and if they had, there is nothing in the facts as agreed to which could give the least support to such an allegation. On the contrary, that officer seems to have been actuated by a high sense of his obligations, and to have been perfectly frank and unreserved as to his manner of dealing with the funds of the office, free of any purpose to make individual gain thereby.
And taking as a test, the rule, several times announced by this court, that as to the acceptance and management of Confederate money during the uncertain days of the war, trustees should be held to just that degree of care and circumspection which prudent men (341) exercised under similar circumstances in the conduct of their own business affairs, we can discover nothing in the case which should convict the master of negligence, either, in the acceptance of the money in 1862, or his subsequent disposition of it. As to the former: it is expressly agreed to be true, that at that stage of the war the prudent business men of that section of the country were in the habit of taking such money in payment of debts of every kind, and consequently no default on that account can be imputed to the defendant in this case, and especially as the plaintiffs, with the knowledge that the order directing the collection of the money was unrevoked, withheld all sort of instructions with reference to it. And as to the conversion of the money into Confederate certificates, that too was done upon the advice of parties upon whose judgment he replied, and because it was thought to be the best that could be done. It is true it was unauthorized and done therefore at the master's risk, and if it had proved to be a mistake so that harm came to the plaintiffs from it, he unquestionably would have been responsible for the loss. *Page 269
But as said in Mabry v. Engelhard, 70 N.C. 377, what harm did come to the plaintiffs?
The certificates and the money stood exactly upon the same footing, both representing the promises of the same power to pay, and depending alike upon the ultimate success of that power, and really if there was any difference in their values it was in favor of the certificates.
It is said, however, that instead of making any investment of the money, the master should have paid it out at once to the parties entitled to receive it. This surely comes with a bad grace from the plaintiffs, who, not withstanding they had been expressly notified to come before the defendant in order that the parties entitled and their respective shares might (as the court had directed to be done) be ascertained and reported, wholly omitted to obey the summons, and (342) thus put it out of the defendant to know to whom, and how much he should pay.
It is next said that he should have made an investment of the fund, and that a mere change of securities upon the same party was equivalent to no investment. This is true, and this he sought to do by offering to let the plaintiffs have the fund, provided they would secure it by giving their notes therefor, but which however they positively refused to do, and it is not to be supposed, if they are unwilling thus to provide for the security of their own fund, that others could be found less reluctant to do so, merely for the privilege of using the money, which was constantly depreciating.
Indeed, in view of all the facts of the case, one cannot avoid an impression that the plaintiffs had made up their minds to do nothing, but to remain passive and commit their fund to the keeping and management of the defendant, hoping thereby to avoid on their own part, and put upon him, the responsibilities incident to the times, and in so acting they do not deserve to be encouraged by the courts.
They had notice of the payment into the office of their money, and we must take it for granted that they were informed of the death of their solicitor, and they owed the duty at least of selecting another, through whom they might ask for such orders as were needed to authorize the payment to them of their money, or for its better investment; and whatever loss they may have sustained is, in a greater degree, owing to their own neglect than to any want of diligence on the part of the defendant.
No error. Affirmed.
Cited: Coggins v. Flythe, 113 N.C. 113; Fisher v. Fisher, 170 N.C. 382;S. v. Trust Co., 192 N.C. 248. *Page 270
(343)