Gill v. Carmine

Alvey, J., delivered the opinion of the Court. Under the instructions of the Court, given in the terms of the second prayer of the plaintiff, and the sixth prayer ³⁴² of the defendants, as modified by the Court, we must assume that the jury found that the work and materials furnished for the completion of the buildings, for which this suit was brought, were furnished upon the order and request of the defendants, and that there was no agreement on the part of the plaintiff to look to the trust estate alone for payment. That the contract was with the defendants is not denied; the only question is, whether the credit was given exclusively to the trust estate in the hands of the defendants as trustees, or whether they were looked to as responsible in their individual character. The defendants contend that inasmuch as the completion of the buildings was contracted for under the sanction of the Circuit Court, as a Court of equity, therefore there could be no individual responsibility contemplated or incurred.

But that was by no means the necessary consequence of the order of Court, authorizing the defendants as trustees to have the work done. The order of the Court was a complete indemnity to the trustees for having the work done, and a determination that the cost or expense of the work should be allowed the trustees out of the trust funds. But it did not bind the plaintiff to look exclusively to the trust funds for payment, whether sufficient or not, unless, by agreement, he should bind himself to look to that fund exclusively. By the deed of trust from Boche to the defendants, the latter were invested with the entire estate of the former, for the benefit of creditors ; and the law is perfectly well settled, that the party holding the estate in trust, even with general powers of management, is bound personally by the contracts that he may make as trustee, though he designates himself as such; “ and nothing will discharge him but an express provision, showing clearly that both parties agreed to act upon the responsibility of the funds alone, or of some other responsibility, exclusive of that of the trustee ; or some other circumstance clearly indicating ³⁴³ another party who is hound by the contract, and upon whose credit alone it was made.” 1 Pars.

Contr., (4th Ed.,) 102. This principle has long since been settled in the law, and was fully recognized and acted upon in the case of Horsley vs. Bell, Ambler, 770; more fully reported in a note to the case of Cullen vs. Queensberry, 1 Bro. C. C., 101, and the authority of which was fully sanctioned in the case of Eaton vs. Bell, 5 Barn. & Ald., 34. And in the recent case of New vs. Nicoll, 73 N. Y., 121 , where a trustee, holding and managing