The question before the circuit court, it is expressly stated, was as to the liability of the trustee, and that, it appears, was one mainly of fact. No question of discretion was reserved, nor does it even appear that the judge who tried the cause was called upon to exercise any discretion. I do not understand that it is disputed, that, if the arrangement between Leavens, Smith, and Sargent was in effect merely a verbal order from Smith to pay his future wages to Leavens, the arrangement would be illegal, because in conflict with chapter 9 of the Laws of 1873.
The circuit court must have found, as matter of fact, that such was the effect of the arrangement entered into; and unless the finding of that court was intended to be transferred, there does not seem to be any question before this court. *Page 308
It would undoubtedly have been lawful for Sargent, as the agent of the Granite Company, to contract with Leavens to do the work which Smith was doing; and he might contract to do it personally, or procure it to be done, by Smith or any other third party. It is claimed here, on the part of Leavens, that it was agreed that Smith should work for Leavens, that Leavens should have credit with the company for his work, and that Sargent assented to this arrangement.
But I do not think the facts reported support this position. There is no satisfactory evidence that Leavens, in fact, entered into a contract to labor for the Granite Company, or to furnish the labor of Smith or any other person to the company. The terms of the arrangement are not what we should have expected, if the transaction had been what it is claimed it was. The substance of it seems to me very clearly to be merely a verbal assignment by Smith of wages to be earned, and as such was a clear evasion of the statute.
If the question whether the casket and grave-clothes were necessaries so as to charge the trustee for the full amount in his hands is before us, I am of opinion that they were — at least, to a reasonable amount.
CUSHING, C. J., concurred.
Trustee charged.