10 Colo. 94 | Colo. | 1887
The appellants brought an action against B. M. Gilman upon book-account, and garnished the Denver, South Park & Pacific Railroad Company as a debtor of Gilman. The garnishee answered that it had $1,495.88 in its hands in checks it had drawn in favor of Gilman, and that said sum and checks were claimed by the City National Bank of Denver under some agreement between itself and said Gilman, and asked that the court make an order that said bank be brought into court as a claimant for this money, and prove its title thereto. The bank filed a petition of intervention, in which it was alleged that Gilman was, at the time of the commencement of this suit, and had been for many months prior thereto, the keeper of a boarding-house at Como, on the line of said railroad, and had, during such time, been accustomed to board divers employees of said company, but not for the company; that said company, in consideration that the rates of board should not exceed a certain just and reasonable rate agreed upon, had agreed to retain from the pay of its employees boarding with said Gilman, each month, such amounts as were severally due and owing from such employees to said Gilman; that at the end of each month a considerable portion of the pay of the company’s employees was to be paid over to said Gilman, or, upon his order, to whom he
Plaintiffs, answering the petition of the bank, admit that there is a contention between plaintiffs and said bank regarding the right of the money in the hands of the company; admit that there was due from the company to Gilman, for the month of March, at least the
Judgment in favor oh plaintiffs against Gilman upon the pleadings. Trial to a jury of the issues joined between plaintiffs and said bank as intervenor, and judgment thereon in favor of intervenor against the plaintiffs for its costs. From this judgment plaintiffs appeal.
The claim of appellee to the money in controversy rests upon a claimed equitable assignment of the money due Gilman from the railroad company for the board of its employees for the month of March, 1882, under an agreement between said Gilman and said company; and also upon the claim that, at the time of the service of the garnishee summons on the company, the officers of the company held this money as the money of and for the bank. Appellants’ claim to the money rests upon the rights of an attaching creditor, and is based upon the claim that no interest in the March indebtedness of the employees of the railroad company passed to the bank by reason of the transactions between Gilmail and the bank.
What was the transaction between Gilman and the bank in relation to the loaning of money by the bank to Gilman? The witness Gilman testifies that about the 1st of December, 1881, he made an agreement with the bank to obtain money due him from the railroad company by ■ turning over to the bank money which would be due him on the following pay-day; that he got about $1,500 from the bank; that that sum was due him from the company at the last of the month; that he showed to Mr. Hanna, the cashier of the bank, how much the board-bills amounted to on their face, and that these bills would be likely to be paid about the 20th of the month; that this arrangement was renewed again in January; that in January he told Mr. Hanna that he had to go south on account of his wife’s illness, and that
We have given the substance of the evidence relating, to the transaction of April 3, 1882, between the bank and Gilman, and relating to the facts leading up to that transaction.
In relation to the carrying out of the different arrangements made between Gilman and the bank, the witness-Bush testifies that from November, 1881, to April, 1882, he was employed as clerk in the pay-master’s office of the Denver & South Park Railroad. That Horace W. Fisher was pay-master, and witness’ duties were to assist the pay-master in general. That each head of departments sent in to the time-keeper the time of the men in his employ. That Gilman sent in to the time-keeper any stops he might have against any of the employees. The time-keeper made up his pay-roll, and put against the several parties named the stops as required by Gil-
The witness Dunlevy testifies that he was connected with the City National Bank, and had been for three years and over; that he knew of checks being made pay
We think the evidence shows an equitable assignment by Gilman to the bank of the March indebtedness of the railroad company to Gilman, and that the railroad company had notice of such assignment, and. assented to it. •The assignment of the indebtedness for the months of November, December, January, February and March was a separate and distinct transaction for each month. At the time of the assignment, in each case, the indebtedness assigned existed, and the amount had been ascertained.
There can be no question but that an assignment can be made of such indebtedness, and that, under our statutes, the assignee takes a legal interest in the matter assigned. Patton v. Coen and Ten Broeke C. M. Co. 3 Colo. 265; Pom. Eq. Jur. 1271, 1273. An assignment of a debt may be by parol, and may be inferred from the. acts and conduct of the party. 1 Pars. Oont. 229.
In the argument much attention was given to the question of notice to the railroad company of the transfer of the indebtedness by Gilman to the bank. So far as the rights of the parties to this action to the money in controversy are concerned, the question of notice to the Company is wholly immaterial. The rights of the parties to this action must be determined by the character of the transaction between Gilman and the bank in relation to this money. If, as between Gilman and the bank, the bank became the owner of the indebtedness, Gilman’s creditors could not obtain any interest therein by attachment. The creditor can only reach the interest of the debtor, and after the assignment to the bank Gilman had no interest in this indebtedness. Pom. Eq. Jur. 694, 697,
Appellants’ counsel cites the fourth subdivision of section 1521 and sections 1523 and 1527 of the General Statutes. We do not think the assignment by Gilman to the bank of the indebtedness of the railroad company to him comes within the statute of frauds.
Under our view of the law applicable to this case, under the evidence, the instruction given to the jury by the court below was more favorable to appellants than they had a right to ask. The instructions left it to the jury to determine from the evidence, not only whether there was an arrangement between Gilman and the bank by which Gilman turned over the indebtedness due him for March, and whether Gilman had ordered the railroad company to pay this money to the bank, but whether Gilman had indorsed the checks, and delivered them to the railroad company, to be delivered by it to the bank before the service of the garnishee summons. The jury were not instructed to find for the bank, unless they found in the affirmative all these facts, and the verdict
Plaintiffs asked the court to instruct the jury “ that the checks drawn by the railroad company to pay Gilman on March pay-roll of 1882 were never delivered by the company to Gilman or the bank, but the money called for on the same had been paid over, and is now in this court, to be disposed of under its order.” The refusal to give this instruction is assigned for error. We think there was' evidence sufficient to show a delivery of the checks by Gilman to the pay-master, to be delivered by him to the bank, if such delivery had been necessary to vest the ownership of the money in the bank, and to have given the instruction asked would have been error.
Plaintiffs further asked the court to instruct the jury that the bank “ claimed the right to the money by virtue of an assignment of it by Gilman to itself, in and by virtue of a certain written order made by Gilman, and delivered to the South Park Railroad Company in January, 1882. The order is not produced, neither are the contents before you as evidence. Therefore you will not consider what its purport was, and on this branch of the case the intervening claimant has failed to make a case, and you should find for the plaintiffs.” The refusal to give this instruction is assigned for error. The instruction asked for is misleading, in that the jury might assume that they were instructed that the bank claimed the money by an assignment from Gilman by virtue of a written order made by Gilman to the railroad company. It entirely ignores all the testimony relating to the transactions between Gilman and the bank. By what right the intervenor claimed the money was a fact for the jury to determine from the evidence. The instruction assumes a fact not proven. There was no evidence of such written order. The instruction was properly refused.
Plaintiffs asked the court to instruct the jury that “ if
We find no error in the refusal to give instructions asked by plaintiffs.
The first, second, third, fourth and fifth assignments of error are based upon the admission of testimony relating to the notice given by Gilman to the railroad company of his assignment to the bank of the indebtedness of the company to him, and the custom of the company in turning over checks upon order of the payees thereof. As the notice to the company in no way affected plaintiffs’ right to the money in controversy, the testimony was immaterial, but, under the evidence and the instructions given by the court, its admission could not have prejudiced the appellants.
The court refused to allow plaintiffs to prove by witness Chamberlin “that, on or about the 15th or 17th of April, 1882, Gilman told witness that he was sorry that
Magon, C., concurs. Stallcup, C., dissents.
For the reasons assigned in the foregoing opinion the judgment is affirmed.
Affirmed.