BIRD, V. C.
Final hearing on bill, answer, and proofs.
Defendant loaned several sums of money, aggregating about $1,200, to complainant and her husband upon a written agreement, signed by both, that he should retain the first moneys received by him, as her agent, in payment thereof. He received $952.33, which he applied in payment of the loans. To recover this sum, with interest, complainant filed a bill.
William Clark, for complainant.
F. A. Dennis, for defendant.
BIRD, V. C. The complainant alleges that in 1873 she appointed the defendant her agent to collect moneys due to her, and that about June 7 of that year he collected for her $952.33, and that he was authorized to hold that money in trust for her until the final determination of a suit in chancery between herself and her husband, as complainants, and one Emson, as defendant, and that that suit was finally determined in 1880 in favor of the complainants therein; and that thereby the said $952.33 became and was due to the said complainant in this suit. There is no doubt about the defendant receiving the said $952.33 at the time stated; but the answer to the bill is that this complainant and her husband agreed in writing, under their hands, that W. should retain from the first moneys he should receive for them a sufficient amount to pay him for all moneys loaned or advanced by him to and for them, or either of them, and that he loaned to the complainant and to her husband large sums of money at various times, so that, at the time he received the $952.33 for the complainant, they (the complainant and her husband) were indebted to him about $1,200. In confirmation of the truthfulness of this alleged liability of the complainant, it is further alleged in the answer that she made a settlement with the defendant on that basis, and offered a note for the difference, which was refused because worthless.
Witnesses have been examined to establish this defense; but, however successful in the attempt to prove the allegation of the money advanced and paid, the law determines the case, as to a large proportion of the money so paid, against the defendant. The defendant cannot charge the separate estate of the wife with the debts of the husband, even though the money be advanced upon an express promise, in writing, by her to pay out of a particular fund. This is now the provision of our statute; and it was the law in this state before the legislature so declared. I refer to Perkins v. Elliott, 22 N. J. Eq. 127; S. C. on appeal, 23 N. J. Eq. 526; Peake v. LaBaw, 21 N. J. Eq. 269; Armstrong v. Ross, 20 N. J. Eq. 109; Van Kirk v. Skillman, 34 N. J. Law, 109.
But the defendant swears that he paid money for clothing and for house rent, for the complainant, under the agreement referred to. To this extent the fund should be charged. He swears that he kept an account of these items in a book, which book he cannot find. He remembers that the aggregate sum was about $175. He remembers that one item was $22, one between $9 and $10, and one $65. This last was cash handed to a son of the complainant, but to what purpose it was put beyond that does not appear. The rent he paid was $80. These severalsums make $177, or $2 more than the defendant thinks the total amount of the book-account. But the $65 must be dropped, for the complainant cannot be charged with the advance made to her son. I will charge her with $80 for rent, $22 for dress goods, and $9.50 for shoes,—in all $111.50. Deducting this from the $952.33, the balance is $840.83. This was received in June, 1873. I do not charge him with interest until April 1, 1874. Then I charge him with interest at the rate of 7 per cent. for four years, making $235.40, and from thence at the rate of 6 per cent., the time being eight years and two months, making $411.92; the principal and all interest being $1,490.75.
The defendant also urges the statute of limitations as a bar to this claim. This is unavailing. He admits that he undertook to receive and to hold these funds for the complainant, and that he did receive them, and has never disbursed them except as above stated. If the transaction did not so strongly partake of the nature of a trust, the acknowledgment the defendant makes would be very likely to justify a court of equity in giving the complainant a decree.
I will advise that the complainant is entitled to a decree lor said sum of $1,490.75, and costs.