
    Mengert, Trustee, v. Brinkerhoff, Sr.
    
      Assignment to trustee — In contemplation of insolvency — Section 631(3, Rev. Stat. — Act of, April '26, 1898 — Filing of assignment in prodate court — Application dy creditors for equal denefit trust — Judgment dates dack, when — Trustee to account only for net proceeds — Trustee may de sued in individual capacity, when — Record in first case, competent evidence in second, when — Agreement of trustee, assignor and creditors good defense to sudsequent action — Defendant required to plead to all defenses, when — Assignment—Trusteeship — Evidence.
    1. A defendant in an action is required to plead all the, defenses he has, and in a subsequent action he will be concluded as to all such defenses, evefi though he failed to plead some of them in the former action.
    2. A trustee to whom an assignment has been made in trust in contemplation of insolvency with intent to prefer one or more creditors, as provided in Section 6343, Revised Statutes before the amendment of April 26, 1898, is not required to file such assignment in the probate court to he administered under our insolvency statutes, hut he may proceed under the assignment until one or more creditors make anplication to a court of competent jurisdiction to have such assignment declared a trust for the equal benefit of all the creditors.
    
      3. When the court by its judgment, upon such application of one or more creditors, declares such assignment to be a trust for the equal benefit of creditors, the judgment relates back to the delivery of the assignment, and binds the assigned property and its proceeds from that time.
    4. Where the trustee in such an assignment permits the prop- ' erty covered by the assignment to him, to be taken in execution for the debts of the assignor, and sold according to law, substantially as an assignee for the benefit of creditors would sell it, all being done in good faith, such trustee is liable to account only for the net proceeds of such sale.
    5. In such case where the return of an officer shows that there was included in his sale property, other than that covered by the assignment, the proceeds of the sale of such other property cannot be recovered from such trustee.
    6. Where the person to whom such an assignment has been made is designated as trustee in the application by a creditor to a court of competent jurisdiction to have, the assignment declared a trust, and judgment is entered as applied for, in a subsequent action for the recovery of the assets, such person may be sued in his individual capacity, and the record in the first case will be competent evidence in the second case.
    7. Where the trustee under such an assignment and the assignor and all his creditors, consent and agree to the disposition of the assigned property, and such consent and agreement is carried into execution, the same will be a full and complete ■ defense to an action thereafter instituted by a creditor for the purpose of having the assignment declared a trust for the equal benefit of creditors; but if one or more creditors do not so consent and agree, the assignment may be declared a trust for the equal benefit of all creditors.
    (Decided February 3, 1903.)
    Error to the Circuit Court of Richland county.
    The controversy out of which this case grows was heretofore in this court, and is reported in Brinkerhoff v. Smith, 57 Ohio St., 611, where the facts are fully stated.
    The present case was begun by Louis C. Mengert, trustee of the estate of P. L. Harrison, an insolvent debtor, plaintiff, against Roeliff Brinkerhoff, Sr., defendant, September 1, 1897, by the filing of the following petition' in the court of common pleas, omitting caption and signatures:
    “Plaintiff says that on the fifth day of January, 1891, said P. L. Harrison, then in full life, and residing in the city of Mansfield, Ohio, was the owner of. a general stock of dry goods, notions and fixtures in the city of Mansfield, Ohio, and was carrying on the business of a retail dry goods merchant in said city in one of the business rooms of Hiram R. Smith’s block on Main street. Said stock of goods, notions and fixtures were of the value of twenty-four-.thousand dollars ($24,000.00). Said P. L. Harrison was then insolvent, and on said fifth day of January, 1891, entered into a written contract with said defendant, by the terms of which said defendant agreed to dispose of said property, goods and chattels in accordance with the terms of said written contract, and on said fifth day of January, 1891, she executed to said defendant as trustee for the Mansfield Savings Bank, Jenner & Tracy, Mollie Y. Harrison and Hiram R. Smith her chattel mortgage of that date for the sum of six thousand, nine hundred and seventy-nine dollars and sixty-two cents ($6,979.62) on said stock of dry goods, notions and fixtures. That on said day said P. L. Harrison delivered into the possession of said defendant said stock of dry goods, notions and property in accordance with the terms of said written contract and chattel mortgage, and said defendant took possession thereof in accordance with the terms of said written contract and chattel mortgage as trustee. -
    “Thereafter, to-wit, on the twenty-ninth day of July, 1891, a petition was filed in the court of common pleas of Richland county, Ohio, by Hood, Foulkrod & Co. against P. L. Harrison, the Mansfield Savings •Bank, Hiram R. Smith, Eoeliff Brinkerlioff, Sr., and other defendants, the object and prayer of Avhich petition Avas to cause said transfer of said stock of goods, notions and property decreed a general assignment for the benefit of all of the creditors of the said P. L. Harrison, according to their respective rights and claims.
    “Thereafter various different creditors of the said P. L. Harrison filed ansAvers and cross-petitions to said petition. Said case Avas appealed to the circuit court in and for said county of Richland, and at the January term, 1895, Avas tried in said circuit court on its merits, and a decree Avas rendered in said circuit court, in Avhich decree, among other things, said court found that said chattel mortgage and contract were made in contemplation of insolvency, and that the conveyance of said stock of dry goods, notions and property made to said defendant as trustee, was made with the intention to prefer certain creditors of the said P. L. Harrison, named in said mortgage and contract, and said court adjudged and decreed that the conveyance of said property to said defendant inure to, the benefit of all of the creditors of said P. L. Harrison as and for an assignment of all of said property to an assignee for the benefit of said creditors in proportion to the claim of each against said insolvent estate, and that the finding, judgment and decree of said circuit court be certified to the probate court of Richland county, Ohio, for the appointment of a trustee of said insolvent estate, and such other proceedings as are authorized by law, and the costs of said action, both in the court of common pleas and in the circuit court, was adjudged against said defendant.
    
      “Thereafter said defendant and the Mansfield Savings Bank filed their motion in said circuit court for a new trial on the grounds' stated in said motion, which motion the court overruled, and a bill of exceptions was duly prepared, signed and filed and made a part of the record. And thereafter said defendant and the Mansfield Savings Bank filed a petition in error in the Supreme Court of the state of Ohio, the object and purpose of which was to reverse the judgment and decree of said circuit court, and said cause was heard in the Supreme Court of Ohio, and at the January term thereof, 1897, the judgment and decree of the said circuit court was affirmed and said cause was duly certified to the probate court of Richland county, Ohio, for execution in accordance with the judgment and decree of the said circuit court.
    “The probate judge in and for said county of Rich-land having been interested in said case as counsel, and being also the son of said defendant, was disqualified from hearing said case or passing upon any of the questions rising therein; and said case was duly certified to the court of common pleas in and for said county of Richland to carry into execution the judgment and decree of said circuit court.
    “Thereafter, to-wit, on the thirty-first day of July, 1897, the said court of common pleas appointed said Louis C. Mengert trustee of said insolvent estate, as provided by law, to receive and collect all moneys and property in the possession of said defendant or any other person or persons belonging to said estate; to receive and collect any accounts, choses in action or notes; to take possession of any personal property belonging to said estate, convert the same into money, and to do any and all acts proper for an assignee or trustee of an insolvent estate to do. Said plaintiff, L. C. Mengert, accepted said trust, gave bond and qualified as such trustee, and is now acting as the trustee of said estate.
    “Said plaintiff, on the twelfth day of August, 1897, duly demanded of said defendant possession of all the personal property, moneys and books belonging to said estate, which were turned over to or came into the possession of said defendant; but said defendant refused to turn over to plaintiff either the books or any of the money or property that so came into his possession. Plaintiff avers that said defendant converted said stock of goods, merchandise and property to his own use and to the use of the Mansfield Savings Bank, of which he is the president, and has retained the same ever since the fifth day of January, 1891, when he took possession thereof as trustee in accordance with the terms of said written contract and chattel mortgage. From the time said defendant took possession of said stock of goods, merchandise and property, on the fifth day of January, 1891, he held it in trust for all the creditors of said P. L. Harrison, as was adjudged and decreed by the circuit court of Eichland county, Ohio, and by the Supreme Court of Ohio; and although said defendant has been duly notified of the said judgment and decree of said courts, and demand made upon him for said property and moneys, he has refused to obey the same.
    “Plaintiff avers that the value of said goods, merchandise, property and money so received by said defendant is not less than $24,000.00, and that said defendant is indebted to plaintiff for the said sum of $24,000.00, with interest thereon at six per cent, from January 5, 1891.
    “Wherefore plaintiff prays judgment against said defendant for said sum of $24,000.00 and interest thereon at six per cent, from January 5, 1891.”
    The defendant filed an amended answer containing seven defenses, and an amendment to the second defense. The third, fifth and sixth defenses were held bad on demurrer by both of the lower courts, and will not be further noticed. The first, second, fourth, seventh, and the amendment to the second, are as follows:
    “First Defense. — Now comes the defendant herein and files this his amended answer to the petition of' plaintiff, leave of court being first had and obtained. The defendant for answer admits that on the fifth day of January, 1891, P. L. Harrison, then in full life and residing in the city of Mansfield, Ohio, was the owner of a general stock of dry goods, notions and fixtures iu the city of Mansfield, Ohio, and was carrying on the business of a retail dry goods merchant in said city in one of the business rooms of Hiram R. Smith’s block on Main street. Admits that P. L. Harrison was then insolvent.
    “Admits that on the fifth day of January, 1891, this defendant signed a written contract made with P. L. Harrison. Admits that afterwards a petition was filed in the court of common pleas of Richland county, Ohio, by Hood, Foulkrod & Co. against P. L. Harrisdn, the Mansfield Savings Bank, Hiram R. Smith and other defendants, but that he was not a party defendant in his individual capacity in said case, that he was never made a party defendant nor entered his appearance in said case. Admits that said cause was tried in the circuit court and Supreme Court of Ohio. Admits that the decree of the circuit court was affirmed and said cause was duly certified to the probate court of Richland county, Ohio. Admits that the probate court in and for said county of Richland having been interested in said case as counsel and being also the son of said defendant, was also disqualified from hearing said case or passing upon any of the questions rising therein and said case was duly certified to the court of common pleas, in and for said county of Rich-land, to carry into execution the judgment and decree of said circuit court. Admits the appointment of L. C. Mengert, trustee, and that said L. C. Mengert gave bond and qualified as such trustee and is now acting as such.
    “Defendant denies that said goods were of the value of $24,000, or any other sum whatever.
    “Defendant denies each and every other allegation contained in said petition herein, not herein expressly admitted or denied.
    “Second Defense. — The defendant admits the taking of a chattel mortgage and the signing of the contract set forth in the petiticn of plaintiff herein, but avers the fact to be that at the time said chattel mortgage was taken and contract signed, Jenner & Tracy were then acting for and in behalf of and as the agents and attorneys of P. L. Harrison, M. Y. Harrison and H. R. Smith; that said chattel mortgage was taken and said contract signed with the full knowledge, consent and acquiescence of said parties acting through their attorneys and for themselves, that said chattel mortgage should be taken and held as collateral security until the Mansfield Savings Bank would be able to go to an adjoining county and procure a judgment on the two notes, securing their claim and have an execution issued to the sheriff of Richland county, Ohio, and cause a levy to be made on the stock of goods owned by P. L„ Harrison and being the same stock of goods in the chattel mortgage; that said judgments were so taken in accordance with the above mentioned agreement, in the court of common pleas of Ashland county, Ohio, and execution served thereon to the sheriff of Rich-land county, Ohio, and a levy made on said stock of goods; that this defendant gave possession of these goods to the sheriff under said execution, with the full knowledge, consent and acquiescence of Jenner & Tracy acting for themselves and for P. L. Harrison, M. V. Harrison and Hiram R. Smith; that at the time said contract was signed, it was understood by and between Jenner & Tracy, acting for themselves and M. V. Harrison, P. L. Harrison and Hiram R. Smith and the defendant, that as soon as the execution was placed in the hands of the sheriff of Richland county, Ohio, and demand was made upon defendant for the possession of said stock of goods, that said defendant was to surrender said stock of goods; that afterwards, by consent, acquiescence and agreement of all the creditors of said P. L. Harrison, the stock of goods was Turned over to the sheriff of Richland county, Ohio, upon levies he had. made upon the same; that after said stock of goods had been taken possession of by the sheriff of Richland county, all of the creditors of P. L. Harrison acquiesced and agreed that the sheriff should sell the same and hold the proceeds for the benefit of all the creditors.
    “That after the sheriff had so taken possession, he sold a part of said goods at retail, which sale lasted several months and during all of said time all of said creditors and interested parties acquiesced in said sale, and that afterwards an order was taken by the sheriff to sell the balance of said stock at public sale in bulk, and said order was so issued with the full knowledge, acquiescence and consent of all the creditors of P. L. Harrison; that from the time said good» were so sold by the sheriff, which said sale occurred in the year 1891, until the beginning of this suit by the trustee, which was commenced in the year 1897, all of the creditors and interested parties acquiesced in said sale.
    “That the object of the suit referred to in plaintiff’s petition was for the purpose of getting at the fund realized by the sheriff from the sale of said goods; that said sale was had upon executions upon judgments in favor of the Mansfield Savings Bank, Hood, Foulkrod & Co., Farley, Harvey & Co., and Brown, Durell & Co., and the amount realized was $9,151.09, and that said sheriff of Richland county, under said above arrangement, got all of said proceeds of said sale.
    “This plaintiff, as said trustee, is therefore estopped from claiming any amount for the value of said goods or in damages from this defendant for not having kept the possession of said goods; all of said creditors having. thus consented to said execution being levied and the sale of said stock of goods being made by the sheriff of Richland county, Ohio.
    “Fourth Defense. — For a fourth defense defendant says: That in the transaction set forth in the petition he acted as the agent of the Mansfield Savings Bank, and in taking said security and contract he was acting as the agent of said savings bank, and that he had no interest individually in the claim of the said bank, nor was said P. L. Harrison indebted to him; but that said mortgage and contract were taken as security to secure the claims due said bank, and it was taken upon the advice of Jenner & Tracy under the circumstances herein alleged; that none of the goods, chattels and property of said P. L. Harrison remained in his hands after the levy of the execution in favor of the Mansfield Savings Bank, Hood, Foulkrod L ■ Co., Farley, Harvey & Co., and Brown, Durell & Co., but that all of said property was taken from him by the sheriff of Richland county, by virtue of said execution, and the same sold as heretofore alleged, and defendant avers that he never received a dollar of the proceeds of said sale and in no way profited by reason thereof. He avers that he acted in good faith in the transaction, and without any purpose to hinder, delay and defraud the creditors of said P. L. Harrison.
    “Seventh Defense.; — For a further defense defendant says: That the claims of all of the creditors of «aid P. L. Harrison have been satisfied out of the fund arising from the sale of said goods mentioned in the first and second defenses, except the claims of Jennei & Tracy, H.' R. Smith, Mollie V. Harrison, Markel Pocket Book Co., and Berfield & Co., amounting in ail to about $2,000, and that this plaintiff can in no case collect more than enough to satisfy the claims of thes< said creditors.
    “Amendment to amended answer. — Now comes the defendant, Roeliff Brinkerhoff,. and by leave of court files this amendment to his second amended answer, and for second defense to the petition of plaintiffj says:
    “That on the fifth day of January, 1891, the said P. L. Harrison executed and delivered to him the chattel mortgage and contract set forth in the petition as trustee for the persons named therein, and to secure the payment of the claims therein set forth ; but he alleges that he accepted the. delivery of said mortgage and contract upon the condition that he was to hold the same as such trustee until judgment could be taken. upon the claims, of the Mansfield Savings Bank and. levy of execution made upon the property described in said mortgage and contract to satisfy said judgments; and that' upon the same day, to-wit: the fifth day of January, 1891, the Mansfield Savings Bank took judgments upon its claims for the sums of $5,015.55 and costs, and for $200.00 and .costs respectively, in the court of common pleas of Ashland county, Ohio; and', upon said day executions were duly issued upon said' judgments to the sheriff: of Richland county, and by virtue of said writs the sheriff of said county of Rich-land duly levied said executions upon said property and took possession of the same on said fifth day of January. 1891.
    “That on the sixth day of January, 1891, Brown, Durell &' Co., Hood, Eoulkrod & Co., and Parley, Harvey & Co., creditors of said P. L. Harrison, took judgments in the court of common pleas of Richland county, Ohio, upon claims aggregating $1,783.00; and the same day upon said judgments executions issued and were duly levied upon the property in question.
    “And thereafter,"by an order of said court of common pleas, made in the case of Brown, Durell & Company v. P. L. Harrison, the sheriff of said Richland county Sold said property and returned the money into court with his proceedings under said order.
    “Defendant says that the whole of said property was taken from his possession by the sheriff as aforesaid • on the fifth day of January, 1891, and that thereafter he had nothing to do with the said property or the sale thereof, but that he surrendered the same as soon as the executions were levied thereon, and that no portion of the proceeds came into his hands or were applied for Ms benefit.”
    ■ ■ The court of common pleas sustained demurrers to all these defenses except the first, and defendant excepted. The plaintiff filed the following reply:
    
      “For reply to the first defense of the amended answer of the defendant, and leave of court having been first obtained to reply thereto, plaintiff says:
    “That he denies that the defendant was not a party in his individual capacity in the case of Hood, Foulkrod & Co. v. Philopena L. Harrison, the Mansfield Savings Bank, H. R. Smith and other defendants; and denies that he, the said Roeliff Brinkerhoff, was never made a party defendant, and never entered his appearance in said case.
    “Plaintiff avers that the said Roeliff Brinkerhoff, Sr., defendant herein, was made a party defendant in his individual capacity, in the said case of Hood, Foulkrod & Co. v. Philopena L. Harrison, the Mansfield Savings Bank, H. R. Smith, and others.”
    The cause was tried to a jury upon the issues joined by the petition, first defense and reply, and upon the evidence, the court holding that the value of the stock of goods so transferred to Mr. Brinkerhoff was the only question to be tried and determined.
    The testimony of the plaintiff tended to prove the value at the time of the transfer to be $24,000.00. The defendant introduced the execution docket of the sheriff, which showed that he sold the goods for $10,586.80 above taxes, and that the costs were $1,291.-59, net $9,295.21, which sum the sheriff paid over to creditors.
    The appearance docket in the other case was introduced in evidence and showed that Mr. Brinkerhoff in that case was sued as Roeliff Brinkerhoff, trustee, and that the sheriff served the summons on him personally.
    The counsel for plaintiff requested the court to charge the jury to bring in a verdict for $24,000.00, and interest, as all the evidence showed that to he the value of the stock of goods. The court refused to give this charge, and plaintiff excepted.
    The defendant requested certain special charges which the court refused, but as this refusal was not held to be error by the circuit court, no further notice will be taken of the requests.
    The court excluded certain evidence offered by defendant, which exclusion the circuit court held to be error, but from the view taken of the case by this court that question becomes immaterial, except as to the amount for which real estate was sold by the sheriff.
    The court instructed the jury to retire and bring in a verdict for the plaintiff for $10,586.80, with interest to the first day of the term, making a total of principal and interest, $16,227.00, being, as the court said, the amount realized by the sheriff. To this instruction the defendant excepted, but the plaintiff failed to except thereto. The jury brought in a verdict as directed.
    The defendant offered to prove that $1,400.00 of the $10,5S6.80 shown by the sheriff’s execution docket, was the proceeds of the sale of real estate not included in the contract and chattel mortgage. The court excluded this evidence and defendant excepted.
    Motions for a new trial were filed by both plaintiff and defendant, and overruled, and judgment entered on the verdict, to all of which exceptions were duly «aved.
    A petition in error was filed in the circuit court by the defendant below and a cross-petition in error by the plaintiff below.
    The cause was heard in the circuit court on the petition in error, the judgment reversed for error in sustaining the demurrer to the second, fourth and seventh defenses, and to the amendment to the second defense, for excluding certain evidence, for directing a verdict in favor of the plaintiff below, and because the verdict and judgment were against the weight of the evidence. The record fails to show that the cause was heard or considered on the cross-petition in error, and therefore that petition will not be further noticed.
    The plaintiff below filed his petition in error in this court, seeking to reverse the judgment of the circuit court, and also alleging that the court of common pleas erred in its refusal to charge as requested as to the value of the stock'of goods.
    
      Mr. John W. Jenner and Mr. T. E. Powell, for plaintiff in error.
    
      Messrs. Cummings & McBride; Messrs. Kerr & LaDow; and Messrs. Brucker & Cummins and Mr. R. Brinkerhoff, Jr., for defendant in error.
   Burket, C. J.

The case of Brinkerhoff v. Smith, 57 Ohio St., 610, was begun and carried forward under Sections 634.3 and 6344, Revised Statutes, as they stood before the amendment of April 26, 1898, for the purpose of having said contract and chattel mortgage declared by the court to have been made in contemplation of insolvency, with the intent to prefer one or more of the creditors of Mrs. P. L. Harrison, and to invoke the provision of said section 6343' which provides that all assignments so made in trust to a trustee shall inure to the equal benefit of all creditors, and of the next section which provides that the probate judge, after such assignment shall have been declared by a court to have been made in trust with the intent to prefer one or more creditors, shall on the application of any creditor, appoint a trustee to receive and administer the assigned property, the same as in other cases of assignments to trustees for the ' benefit of creditors. The above are the material provisions of the two sections so far as the same are applicable to the original case reported in the 57 Ohio St., report, and to this case.

Under those sections, the trustee to whom the assignment is made in contemplation of insolvency, and with intent to prefer one or more creditors, is under no duty or obligation to file the assignment in the probate court to be administered as a general assignment for the benefit of creditors, but on the contrary he may hold the property and proceed under the assignment to him until some creditor applies to a court of competent jurisdiction to have the assignment declared to have been made in contemplation of insolvency, with the intent to prefer one or more creditors. If such creditor, or any creditor who may come into the (tase, succeeds in having such assignment declared by the court to have been so made, then the judgment will relate back to the making and delivery of such assignment, and the trustee so receiving the assignment will be held to account to the trustee appointed by the probate court, for all the assets so assigned to him as, of the time of the assignment. An assignment under said section 6343 made to prefer one or more creditors, is different from an assignment made for the benefit of all creditors, as was the case in Wambaugh v. Insurance Co., 59 Ohio St., 228. Under said sections 6343 and 6344, the trust character and intent must be first declared by a court of competent jurisdiction at the suit of a creditor, while under section 6335 no such declaration is necessary, but when such trust character and intent is declared by a court, the judgment to be effective must relate back to the time of the assignment and bind the assets from the time of the delivery of such, assignment. From that time a trust character is impressed upon them, and -they mure from that time to the equal benefit of all creditors. If the trustee could deal with the property and prefer some creditors, and have the trust take effect only from the date of the judgment, the assignment could not inure to the equal benefit of all the creditors. To give effect to the statute in this regard, it is necessary to hold that the assets are bound from the time of the assignment.

When an action is begun by a creditor to have an assignment made under said section 6343 declared as having been made in contemplation of insolvency with intent to prefer one or more creditors, as was done in the original action in this matter, the trustee may defend upon the ground that the assignment was not made to him in contemplation of insolvency, or that, it was not made with intent to prefer one or more creditors, and if he makes either one of those defenses good, the judgment must be in his favor

If he fails in both of those defenses, he may still defend further and show- that he renounced the trust, and restored the assets covered by the assignment to the assignor. Robertson v. Desmond, 62 Ohio St., 487. He may also defend on the ground that he has made disposition of the property by and with the consent, acquiescence and agreement of the assignor and all the creditors. This must be so, because where all persons concerned or interested consent and agree as to their private affairs, no public interests being involved, the law will not interfere. Where all consent and agree, and the assignee acts upon such consent and agreement in the disposition of the property, and thereby changes his position to his injury, all will be estopped.

All of the above defenses could have been made in said first action by Mr. Brinkerhoff, and if he made those defenses and was defeated, he is bound by that defeat, and cannot make the same defenses in this action wherein he is sued by the trustee appointed by the court for the recovery of the assets included in the assignment or for their value.

If he failed to make said defenses, or any of them, in the first action, he is now concluded the same as if he had made them and failed, because a defendant is bound to make as many defenses as he has, and cannot make a defense in a subsequent suit which he might have made in a former one. Roby v. Rainsberger, 27 Ohio St., 674; Bridge Co. v. Sargent, 27 Ohio St., 233; Petersine v. Thomas, 28 Ohio St., 596; Bell v. McColloch, 31 Ohio St., 397; Kunneke v. Mapel, 60 Ohio St., 7, 8.

In so far as the second, fourth, and seventh defenses, and the amendment to the second defense, set up the substance of the above defenses, or any parts thereof, which could have been made in the original action, the answers are bad on demurrer. The parts of said defenses, and amendment which plead that the stock of goods was taken by the sheriff under his executions in pursuance of the understanding that Mr. Brinkerhoff should accept the contract and chattel mortgage and the possession of the goods until judgments could be obtained, etc., and that he held possession only three or four hours, that he acted in good faith on advice of counsel, and never received a dollar of the proceeds, and did not intend to hinder, delay or defraud creditors, state no defense to this action nor to the original action. The facts so pleaded do not show a renouncing of the trust, nor a return of the goods to the assignor, but clearly show that he aided and assisted in diverting the goods from Mrs. Harrison and her general creditors and bestowing them or their proceeds upon a few preferred creditors. Instead ®f this being a defense, it was an aggravation. True, he might do what he did without liability in case no creditor instituted proceedings for the purpose of having the transaction declared a trust. He acted at his peril, and creditors having instituted proceedings, and having had a trust declared, and a trustee appointed, he cannot noAv, in this action, avail himself of defenses Avbich he could only make in the original action, even though he acted in good faith upon advice of counsel, and received no part of the proceeds of the sale of the goods.

The court of common pleas was therefore right in sustaining said demurrer to said defenses, and the circuit court erred in reversing the judgment on that ground.

In the first action Mr. Brinkerhoff Avas sued by the name of Roeliff Brinkerhoff, trustee, and in this action as Roeliff Brinkerhoff, and it is urged in his ftehalf that this is error. The assignment made him a trustee and it Avas proper, though not necessary, to sue him in the first action as such. But the trust having been declared by ihe court, and the stock of ¡roods having been disposed of, and lie having failed on demand to restore the assets, be became'liable 3n his individual capacity,'and he stands in one and the same relation in both actions, and the record in the first case is competent evidence against him in the second.

The circuit court reversed the judgment of the common pleas for the further reason that the common pleas, erred in the exclusion of certain evidence. After the defendant had . offered the return of the sheriff in evidence showing money made $10,586.80, costs $1,291.59, net $9,295.21, his counsel offered to prove that $1,400.00 of this sum arose out of the sale of certain real estate not included in the contract and chattel mortgage, but the court excluded the evidence, and this exclusion was held to be error by the circuit court, and we think the court was right in so holding, and that the reversal of the judgment on that ground was right. But there was no error in excluding the other testimony offered by the defendant»

The plaintiff below claimed and proved the value of the stock of goods to be $24,000.00, there being no conflict of evidence as to the value. The defendant claimed that the recovery, if any, should be limited to the amount realized by the sheriff on the sale under execution, and introduced the return of the sheriff to show that amount. The court of common pleas rev fused to charge the jury that the value of the goods, with interest, was the measure of damages, and adopted the view of the defendant, that the recovery-should be'limited to the amount realized on'the .sale upon execution, and directed the jury to bring in a verdict for that sum, with interest. There' wa,s no error in so doing, except that the amount should have been reduced by the amount for which the real estafe was sold. As the court had erred in excluding the evidence as to the proceeds of sale of the real estate^ it also erred in directing a verdict for too large a sum, or a sum which might have been reduced if the evidence as to the proceeds of the real estate had been admitted. Where the facts are conceded and the amount is certain, there is no error in directing a verdict accordingly.

This court will not usually weigh the evidence to ascertain whether the verdict is against its weight, but as the case turned wholly upon the amount of damages to be awarded, and as the common pleas adopted the proceeds of the sale on execution as the proper measure of damages, there was none but written evidence to weigh, and the court construed that, and directed the jury to bring in a verdict for the amount of the sale and interest, which the jury did, without weighing the evidence. If the court was right, it cannot be said that the verdict is not sustained by the evidence.

Summing up the whole case, the judgment of reversal is sustained and affirmed on the one ground only that the court of common pleas erred in excluding the evidence offered as to the amount of proceeds of sale of real estate included in the return of the sheriff, and all other questions passed upon by the circuit court, and upon, which its judgment of reversal is based, are ruled in favor of the plaintiff below, and the judgment, of the circuit court as to them is disapproved and not affirmed. The cause will be remanded to the court of common pleas for a new trial in accordance with this opinion and the law. In that trial the question as to the rule of damages will again arise, and while the general rule is the value of the goods, with interest, that rule does not seem to be applicable under said section 6343 where the goods have been turned over to the sheriff, and levied on and sold under proceedings, in legal effect, the same as if sold by a trustee appointed by the proper court, and where the trustee in the assignment received no part of the proceeds and no profit to himself and acted in good faith. There is no probability that a trustee appointed by the court could have realized more money for the goods than was realized by the sheriff, and there would seem to he no justice in compelling Mr. Brinkerhoff to pay more for the goods than was received for them at the sheriff’s sale. And there is authority for this holding. In Bean v. Smith, 2 Mason, 252, Justice Story said: “Will not a court of equity decree, that the fraudulent grantee shall account to the judgment creditor for the amount of the proceeds of the sale, considering them as a mere substitution for the original fund? It appears to me, that such a course is within the established doctrine and practice of the court.”

The above allows a recovery of the proceeds of the sale, and this was quoted with approval by this court in Holmes v. Gardner, 50 Ohio St., on page 175.

Another question may arise further along in this controversy, when it comes to the administration of the trust, and that is as to whether Mr. Brinkerhoff is entitled to subrogation, to the claims paid out of the proceeds of the sale of that stock of goods. We express no opinion on that question now as it is not before us, but mention it so that it may not be forgotten.

For the exclusion of the evidence as to the proceeds of the sale of real estate as above indicated, and for directing a verdict for too large a sum, and for no other reason, the Judgment of reversal by the circuit court is

Affirmed.

Spear, Davis, Shauck, Price and Crew, JJ., concur.  