Thompson v. Knapp

De Courcy, J.

As security for the execution by him of a ten year lease from the Wamesit Power Company, and for the monthly payment of the rent, the plaintiff on June 6, 1898, deposited $3,000 with the defendant, as trustee; and the defendant in writing accepted the express trust.

The defendant deposited the money in a trust company in his own name as trustee. On June 20, 1908, when he paid to the plaintiff the sum of $2,000 from the fund, interest at the rate of two and one half per cent per annum compounded monthly had been credited to the account in the sum of $826.84. When the further sum of $1,000 was paid to the plaintiff, there was an additional credit on the bank account of $27.52 interest.

On these facts, found by the trial judge and not disputed, we have no occasion to consider whether the defendant would have been liable for a failure to invest the fund. He did invest it, and it has produced interest. And he held it, not as a mere bailee or stakeholder for a short period, but as an express trustee, and for *279 the ten years of the lease or longer. His legal liability was that of a trustee. Maverick Congregational Society v. Lovejoy, 6 Allen, 183 . Maxwell v. Whieldon, 10 Cush. 221 . The interest accruing to the fund was not his to dispose of, and must be accounted for to the plaintiff as owner. Davis v. National Life Ins. Co. 188 Mass. 299 . Goodwin v. Massachusetts Loan & Trust Co. 152 Mass. 189, 203 . 39 Cyc. 422, and cases cited.

The memorandum of the trial judge does not make it clear whether the defendant’s claim for compensation, set up in his amended answer, was passed upon. But as he does not argue this question in his brief and it does not seem to have been pressed at the trial, we assume that the claim either was disallowed or has been waived.

Decree affirmed.