In this action, defendant was defaulted, the trustee, Leon Moran, was discharged, and the action proceeded against the trustee, H.R. Cutler, who had filed his disclosure denying that he had any of defendant's goods, effects, or credits in his possession at the time this suit was brought, nor that he had had any such since said suit was brought, and thereupon submitted himself to such further examination as the plaintiff might see fit to make. At the September term of the Orleans county, court, Cutler was examined by the plaintiff under oath, before the court, respecting his liability as trustee. No other testimony was introduced in the trial of the cause. The court found and reported certain facts relating to the trustee's liability, and upon the facts so found rendered judgment that said trustee was liable to the plaintiff in the sum of $343.19, and gave judgment against the trustee for that sum.
The following are of the facts found: In the early part of 1925 trustee Cutler sold a farm in the town of Albany to the defendant, and agreed at the time to furnish with the farm a dairy of cows, a team, and to do certain repairs. The purchase price was $8,250.00. To secure payment of said sum the defendant gave Cutler his note and mortgage upon the premises and a chattel mortgage upon the personal property, and also assigned as collateral security two other mortgages and notes, one of them having been given to the defendant by the trustee Moran. On the Moran note there was about $1,250.00 due.
By written agreement entered into between the trustee, Cutler, and the defendant, which was introduced in evidence and marked Plaintiff's Exhibit 3, it was provided that one-half of the cream checks received by the defendant should be paid to Cutler to apply on the indebtedness.
Cutler received cream checks, deposited them to his own personal account in the bank and drew his check to the defendant for the latter's half. Upon one occasion, which occurred before the service of the writ in this case, Cutler used all the *Page 119 proceeds of the cream checks for the purchase of farm machinery which was put upon the farm.
Up to the 21st of May, 1925, the cream checks came made out to Cutler, but thereafter, by a rule of the milk dealers, the checks were made out to the producer, that is to the defendant. Thereafter the cream checks, though drawn to the defendant, were sent to the trustee Cutler. The defendant indorsed them. Cutler deposited them to his personal account in the bank and thereafter drew his check for one-half of each and delivered it to the defendant. The amount which Cutler received since the service of the writ upon him and paid to the defendant as the latter's one-half of the checks amounted to $343.19.
The record states that "To the finding of the facts as aforesaid, the trustee took and was allowed an exception, on the ground that they were not supported by the evidence and that some of them were contrary to the evidence and misleading."
The trustee also took and was allowed an exception to the judgment rendered "on the ground that it was not supported by the facts found, nor by the evidence, nor actual facts in the case."