There is no ground for pretending that Thompson on the 15th of August, 1857, when he received the $4,000 draft, was insolvent, or contemplated becoming so.
He received it pursuant to an agreement, under which he had then been acting nearly two years. That agreement made it his duty to collect the draft, and gave him a right to use the proceeds, and made him liable to pay interest on any balance of which it might form a part, until he was required to pay the balance itself.
There was no fraud in receiving or collecting the draft. It is urged, however, that having collected it, he should have deposited the proceeds to the plaintiffs’ credit, with some depositary. But the agreement between the parties did not require this. So depositing it, would not have relieved him from a personal liability to pay the amount to the plaintiffs, if the
A person cannot be said to have received money in 'a fiduciary capacity, who receives it upon an agreement that he may use it in his own business and for his own purposes, and shall become a debtor for the amount, and shall pay interest at a stipulated rate, to be ascertained and struck, at times and from time to time, and in a manner previously agreed upon.
The defendant received the draft on the 15th of August, on an agreement to collect it, and that he might use the proceeds. Being solvent then, and not then contemplating insolvency, the agreement existing at the time he received it, and which determined his duties and rights, gave him authority to collect the draft, and use the proceeds in his own business.
We cannot accede to the proposition that his failure on the 25th, connected with knowledge on the 24th, that he had become insolvent, and the conclusion arrived at on the morning of the 25th, that he must fail, annulled the agreement under which the draft had been received on the 15th, and converted the defendant into a trustee of the plaintiffs, divested of all power or authority to use the proceeds, as it was agreed he might do, when he received the draft, and undertook to collect it.
The money, therefore, was not received in a fiduciary capacity. The use made of it was authorized by the agreement under which the draft was received, which agreement had been acted upon nearly two years, and under which the defendant had received and collected moneys for which he had made himself the plaintiff’s debtor, to more than $300,000 in the aggregate. The relation between the parties was that of debt- or and creditor, and not that of trustee and cestui que trust.
There was no conversion of the moneys to the defendant’s use, wrongful, in judgment of law.
There was no fraud in contracting the debt or incurring the obligation for which this action is brought. The obligation was incurred and was complete when the draft was received. It was received in good faith, under an agreement subsisting at the time, which covered the whole matter of. collecting the
The defendant has done whatever he has done, down to and including the collection of the draft and the use of the money, as the plaintiffs agreed he might do. His right to use it, and his liability to pay interest, resulted from the agreement under which the draft was received. And the state of things then existing must be looked at to determine whether the defendant’s liability was fraudulently incurred, as he has conformed in all respects to his agreement, except to pay the money when the plaintiffs demanded it. Being a mere debtor for the amount, it cannot be said that he was guilty of a fraud in contracting the debt, when there is no just pretence for saying that he was guilty of any fraud or bad faith, in making the agreement under which he received the draft, without he received it under such agreement, knowing or suspecting that he would not be able to perform it.
So far as the actual intent of the defendant in any part of the transaction is involved or is material, there is no reason to conclude that he personally knew of the receipt or collection of the draft, until after his business was suspended. And it may also be observed that, as to the item of $199, which was remitted in the same letter with the $4,000 draft, no point is made in the affidavits, that the liability of Thompson for that, is one in respect to which the right to hold him to bail exists.
We are of the opinion, that upon the facts established by the affidavits, on which the order appealed from was made, the defendant did not “ wrongfully convert the property of the plaintiffs.”
That he was not acting “ in a fiduciary capacity,” in collecting the draft and receiving the amount of it.
That he was not “ guilty of a fraud in contracting the debt or incurring the obligation for which this action is brought,”
Unless some one of these facts have been established, it is not claimed that any ground has been shown to exist, which, by the Code, gives the right to hold the defendant to bail. The order must, therefore, be affirmed.