A verdict for the defendant was rendered by the jury under the direction of the court. There was no controversy about the material facts. When the Nichols judgment was paid, with the permission of the court, and the order which appointed Pelton receiver was vacated for that purpose, the tile company was at liberty to pay its debt subject only to statutory restrictions. It did pay it by turning out to the judgment creditor the note of Bartlett, Robbins Co., for $10,550, which represented their indebtedness to the tile company. The documentary evidence shows that fact, and the testimony of the defendant confirms it. That note thus became the property of the judgment creditor, not only by the act of the company, but by the direction and with the approval of the court, which vacated the receivership for that purpose and upon that condition. The note remained in the defendant's hands as the agent of such owner, and when it was ultimately paid to the defendant, partly in money and partly in a new note, he received the proceeds still as the owner's agent, and neither the tile company nor the defendant had any title to it whatever. Of course it follows that the new receiver, the present plaintiff, obtained no title to it by his appointment, and gained no right, except to question the validity of the payment, and seek a recovery from the true owner to whom the transfer had been made. He has not sued the true owner, nor brought him into court to answer, but has sued the agent on the theory that the fund belonged to the tile company, and was being withheld and converted by its officer. No such cause of action was established. On the contrary it appeared that a stranger to the action owned the fund, and that the tile company had no title to or interest in it when the plaintiff was made receiver. It is claimed that the payment to the creditor was invalid because the company was insolvent. If that is fully established, it is immaterial. The payment was not shown to have been made in contemplation of insolvency, and the *Page 231 facts indicate the contrary. And that question could not be raised in an action to which the creditor, who was paid, was in no manner a party. The transfer made, was not to an officer or stockholder of the company and restrained for that reason.
The judgment should be affirmed, with costs.
All concur.
Judgment affirmed.