93 Mich. 342 | Mich. | 1892
The appellant filed a petition in the circuit court in chancery of Wayne county, representing that in August,-1890, he sold watches to the men employed in defendant’s camp, and received in payment therefor a draft on defendant, in which petitioner’s agent was -named as payee, which draft read in substance:
“Pay W. A. Fulton, or order, for orders days’ labor at Memo, on bach per month, which above payee herewith accepts as below in full settlement to date.
“Amount................................i_________$441 02
“Less camp account------------------------------
“Balance due.....................................$441 02”
—And signed by A. J. Potts, foreman of defendant. The draft was indorsed, “ Payable December 11, 1890,” and on the back of this draft was also indorsed the names of the men whose accounts were drawn against to the amount charged to each.
On presentation of this order, the lumber company indorsed the draft: “Accepted. Payable on 1st or 4th of January, 1891. J. E. Potts S. & L. Co.”
The petition alleges that the total amount of said draft was deducted from the wages due or to become due to its employés named on the back of the order, and that the-deduction from the wages was charged against the account, of the men on the books of the company. The petition-further avers that by this transaction the petitioner became- and was the assignee of the laborers in and to the sums-of money mentioned, and that, as such assignee, he is entitled to all the rights of such laborers to have the claims; declared a preference, and paid out of the proceeds of the-lumber company’s estate; that the estate is insolvent; and the prayer is that the petitioner’s claim be made a preferred claim.
The answer denies that the petitioner is assignee of the
The matter was heard and disposed of on the petition and answer, the circuit judge denying the prayer of the petitioner.
This ruling was correct. If it be regarded as an open question of fact as to whether there was a novation, the answer, not being controverted by proofs, was conclusive; but, as a matter of law upon the facts stated in the petition, there was a complete novation. The petition shows that the draft was accepted by petitioner as payment, and that the company accepted the draft, and charged the amount to its several employés. There was no longer the relation of debtor aud creditor between the laborers and the defendant, and the acceptance did create that relation between the payee and the company.
The petitioner relies upon the case of Carley v. Graves, 85 Mich. 483, as authority in support of his position, but that case presented a very different state of facts. The case was decided on the ground that the fund withheld was a trust fund, left on deposit for the claimant, and that the relation of debtor and creditor never existed between the defendant and the claimant. In the present case the petition avers, in legal effect, that the debt from the laborers to the petitioner was discharged. The petition recites that the draft was accepted in payment for watches sold to men in the employ of the defendant. No trust fund was left on deposit with defendant for petitioner, but, on the contrary, a term of credit was extended by accepting the draft payable January 4.
