The liability of the supposed trustee must be determined upon the answer, in connection with such facts as are proved by the plaintiffs, and which are additional to, and not conflicting with, the facts which the answer discloses. Rev. Sts. c. 109, §§ 15, 41. Gouch v. Tolman, 10 Cush. 104.
By the answer it appears that a sum of money was in the hands of the defendant, which, according to the course of business and agreement of the parties, was payable to the principal defendants in the original suit. But it also clearly appears that it was not due to them as their own property, but was to be paid to them as the earnings and property of the other railroad *71companies who were parties to the agreement. They were to receive it only as the agents or trustees of those other companies, for the purpose of transmission to the real creditor. And there is nothing in the testimony of Chapin to control or explain this state of facts. Although it may have been the custom to pay the money directly to the agent, without distinguishing it from other payments made to that company in their own right; and although it might not have been thought or considered that the money thus paid was really the property or other parties, paid for their use and on their account; yet when it becomes important to make the distinction, and the title to the money can be plainly determined, there is no reason why the distinction should not be made. When the property of a principal can be ascertained and separated, the creditors of an agent cannot be allowed to appropriate it to the payment of their debt. Judgment for the defendants.
Dewey, J. did not sit in this case.