ON REHEARING.
QUARLES, J.The petition for a rehearing in this case, after alleging that the court did not understand the facts, misapprehended the material facts, and misapplied the law to the facts of the ease, proceeds to argue that the claim asserted by the respondent, and which he claims was compromised, was based upon supplies purchased by him' with his own means for running the mill, and used in the conduct of the company business, and therefore his claim under the contract made by the Newport Mill Company on July 28, 1893, was of superior or equal dignity with that of the appellants, and was a' sufficient consideration to support the agreement of April 19, 1894, between appellants and respondent. The petition proceeds to-quote from the opinion herein wherein it holds that respondent should have intervened in the action brought by Towle & Co. against the Newport Mill Company, and then says: “These assertions on the part of the court were doubtlessly made upon the theory that Towle & Co/s action against the Newport Mill Company was brought by attachment, and that the property of the said mill company was levied upon by a writ of attachment in that case prior to a rendition of the judgment therein. But such are not the facts. The record does not show that the property of the mill company was levied upon until after Towle & Co. had recovered judgment against said Newport Mill Com*480pany. Towle & Co.'s action in that case was simply an action upon an account, without the aid of attachment proceedings, and Vane was not made a party thereto.” All of the files and records in the ease of Towle & Co. against the Newport Mill Company are not in the record before us, only the judgment-roll in that case, which does not show whether any attachment issued in that suit or not. But the record before us does show that an attachment issued in that case. The plaintiff, William Vane, while testifying as a witness in his own behalf, as appears at page 34, folio 95, of the transcript, speaks of the attachment. In this case, when the original opinion was rendered, we thought, and still think, that if the respondent had a claim antagonistic to that of the appellants, which should have been paid prior to or ratably with that of the appellants, he should have intervened in that suit, and could not stand idly by, and see the termination of that suit, see the appellants subject the assets of the said mill company to their claims by legal process, and then assert an adverse claim to those assets afterward, for the following reasons: The evidence in this case shows that the contract of July 28, 1893, was made, in part at least, for the purpose of procuring supplies from the appellants to run the mill and business of the Newport Mill Company; that this contract was shown to appellants before it was signed and after it was signed, and on the faith of its terms, and for that reason, that the respondent was to pay out of the proceeds of all lumber from the mill the claims of appellants for such supplies. Respondent Vane knew of their efforts to subject the lumber of said mill company to their claim for supplies, and failed to assert an adverse claim (so far as this record shows) until the day of sale of the lumber under execution. In his testimony Vane shows that he sold lumber, shipped lumber, etc. He nowhere shows how much he sold, or how much he realized from such sales, nor does he show any vouchers for money claimed to have been paid out in the conduct of the business, which he claims to have conducted as trustee. It is true that he says he paid out of his “own pocket” over $900 in buying supplies to run the mill during the five months that he conducted it, yet, when asked to itemize it, he testified as follows: “I advanced something *481over $200 for bare groceries, and about thirty dollars (in all, about sixty dollars — near that sum), for feed, and about $167 (near that amount) for beef, and about seventy dollars and a half for oil, and about forty dollars for repairing the mill, and $102 for logs — all for the Newport Mill Company.” Then he said: “There were different other bills. ¡There was about four dollars and a half stamps, paper, and envelopes. iThere was vegetables, between thirty and forty dollars. I advanced this money between the twenty-eighth day of July up until the mill closed down, which was between the 28th of July and some time in December, 1893.” Placing the items at the maximum, giving the respondent the benefit of all of the doubts and uncertainties with which his statement bristles, and his alleged claim foots up the sum of $684, instead of “over $900.” Kespond-ent was the only witness who testified in his own behalf. He failed to show whether the money he paid» “out” of his “own pocket” was proceeds of lumber sold by him as trustee or his own fund, and he fails to show that, if it was his own funds, ,he had not been reimbursed; and, further, his reputation for (truth and veracity was impeached by several witnesses. Trustees must, in dealing with trust funds and with the beneficiaries thereof, show the utmost good faith and fair dealing. They can make no profit out of the trust funds, nor obtain any advantage over the beneficiaries of such funds, and a trustee cannot assert an adverse claim to funds which he receives in his fiduciary capacity. The compensation of the trustee in this case was provided for, not through and out of the trust funds, but by a third party, to which he assented; and under these conditions he could not look to the trust funds for compensation for his services as such trustee.
Before closing, we will say that hereafter no petition for rehearing will be considered unless it is couched in respectful language; and that in drafting a petition for rehearing all attorneys should be careful to not misrepresent any fact which appears in the record. These suggestions are made with the hope that it will prevent the recurrence of evils that have appeared in several petitions for rehearing in the past. A rehearing is denied.
Sullivan, C. J., and Huston, J., concur.