Opinion
December Term, 1897.
Otto C. Wierum, Jr., for the appellant.
Lucius H. Beers, for the respondents.
In determining whether permission should be granted or withheld to serve a supplemental pleading, the rule to be applied is well stated in Williams v. Hays (17 Civ. Proc. Rep. 98) as follows: "This right, under section 544 of the Code of Civil Procedure, unless it be shown that the object of the application is to obtain delay, or is not otherwise made in good faith, or unless the proposed pleading is manifestly frivolous, cannot be properly withheld from a party when timely asserted. The sufficiency in law of the supplemental pleading is not passed upon in this class of motions further than as above stated."
It was not claimed below, nor here, that there was any laches on the plaintiff's part in making the motion, nor does it appear that it was made for the purpose of delay, the plaintiff asserting that he stated below, as he repeats here, that he would not oppose a trial immediately after the joinder of issue on the supplemental pleadings. It appears that the matters sought to be pleaded occurred after the joinder of issue under the former pleadings; and with respect to the stipulation and the payments made under it, we think that those are material facts which, upon the trial, the plaintiff should be permitted to prove.
With regard to the claim which the plaintiff suggests that he has in the nature of a claim for professional services, which he desires to offset against the balance due to the defendants under the stipulation, were that the only object sought by the supplemental pleading, we should affirm the order, because it is clear, as a matter of law, that the plaintiff cannot, as against the beneficiaries of a fund which he holds in trust, offset a personal claim. Or, to express it differently, a trustee cannot set off his personal claims against a beneficiary so as to avoid payment of a balance due by him as trustee.
It is urged, however, by the appellant that, upon the former appeal from the order directing him to pay the balance, there were certain expressions in the opinion of the court which are to be taken as intimations that the relation between the plaintiff and the defendants, as the result of the stipulation, was changed from a trust relation to that of an ordinary contract liability. In this, however, the appellant is entirely in error. There is nothing in the language used to justify any such construction, nor was it intended by the opinion in any way to give support to the contention that any such change in the status of the parties was effected. It is true that, in disposing of the questions presented on the former appeal, the judge writing the opinion used the phrase "contract relations." In a broad sense, the relation existing between parties under a declaration or deed of trust, in which there is wanting every element of tort, is a contract relation; and it was in this sense, in which all obligations rest upon contract, that the expression was used in the opinion, by which it was intended to indicate that the court was unwilling to consider that any element of tort existed in the form of the action. In referring to the relations of the trustee to the beneficiaries, therefore, as they existed when the action was brought, the judge correctly spoke of them as contract relations.
Ordinarily, in motions of this kind, we should not express our view upon the merits of any proposed cause of action or defense intended to be set up in a supplemental pleading, further than to determine under the rule whether or not it was manifestly frivolous; and we should not have entered into this discussion were it not entirely proper to correct the misapprehension into which the appellant's counsel seems to have fallen, that there was something or some expression in the former opinion which would support the view that this court intended to hold that the individual claims which the plaintiff might have against the defendants were a proper offset as against any balance which the defendants were entitled to receive from the trust fund held by the plaintiff. Without finally passing upon this question, however, we think he should have his day in court.
The stipulation which adjusted the claims as between the defendants was the basis upon which the plaintiff could distribute the funds in his hands; and he was entitled to have that stipulation formally proved and a judgment entered on it, so that the parties to it would be bound and the plaintiff discharged from any further liability to any of the defendants.
The orderly practice requires that such a stipulation should be formally alleged in the pleadings so that the judgment entered can be based upon it, and the distribution made under that judgment.
For this reason the plaintiff should have been allowed to interpose the supplemental complaint. Considering the facts as developed, this leave should be granted upon the plaintiff stipulating that the issue shall remain as of its original date, and that he will accept short notice of trial and try the case when reached without further delay.
The order should, therefore, be reversed, with ten dollars costs and disbursements of appeal, and the motion granted, with ten dollars costs to abide the event.
VAN BRUNT, P.J., WILLIAMS, PATTERSON and INGRAHAM, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs to abide event.