Griggs v. City of St. Paul, No. 8467

No. 8467 | Minn. | Jan 5, 1894

Mitchell, J.

The short facts of this case are that on June 23d one McCann entered into a contract with the city to grade Park avenue, for an agreed price.

On June 22d he executed to one Yan Slyke an order in the following words:

“June 22, 1891. To the City of St. Paul: Pay to Wm. A. Yan Slyke two hundred and fifty dollars, and deduct that amount from any money which may be due me on account of the grading of Park avenue. Frank P. McCann.”

Yan Slyke filed the order with the city comptroller. Subsequently, McCann assigned his money then due or to become due on this contract to the plaintiff, who filed the assignment with the city comptroller.

Subsequently, .the city paid to plaintiff the full amount due Mc-Cann on the contract, except $250 which it paid to Yan Slyke. Plaintiff now sues the city for the $250. The main question in the case is whether this order was a draft drawn upon the general credit of the drawer, or upon a particular fund. Where an order refers to a certain fund, the test as to whether it is a draft drawn upon the credit of the drawer, (in which case it does not operate as an assignment of the fund,) or an assignment of the fund, is whether it is to be paid absolutely, the fund being merely referred to as the means of reimbursement to the drawee, or whether it is to be paid out of the fund, which thereby becomes the measure of the drawee’s liability in case he accepts it.

This is a question of the intention of the parties, to be gathered from the language of the order, but we apprehend this language must be construed with reference to the character and relation of the parties.

Counsel for respondent has argued the case precisely as if the order had been on a natural person, possessed of unlimited power to accept drafts. Were such the fact, we may concede, without deciding, that this order would be held a draft drawn upon the general credit of the drawer. But the city, being a municipal corporation, had no power to accept drafts generally. Its only power in the premises was to pay to McCann or his assignee the contract price of the work. Had the order been accepted by any city officer, assuming that he had authority to accept such orders at all, clearly the extent of the city’s liability would have been to pay it out of moneys due McCann, if sufficient for that purpose. In view of this fact, the intention must have been that the order should be paid out of that fund; otherwise, it would have been of no effect whatever. Strader v. Batchelor, 8 B. Mon. 168" court="Ky. Ct. App." date_filed="1847-01-07" href="https://app.midpage.ai/document/strader-v-batchelor-7128981?utm_source=webapp" opinion_id="7128981">8 B. Mon. 168. We infer from the record that this distinction, growing out of the character of the city, was not specifically called to the attention of the trial court.

It is also claimed that nothing was assigned by this order, because there was nothing then presently due and payable to McCann on his contract. It would be too narrow a construction of the order to thus limit the meaning of the words “which may be due.” The word “may,” as here used, implies contingency, possibility, or probability, and is broad enough to include whatever might become due and payable on the contract.

It is further urged that as the contract was not entered into until the 23d of June, and the order was given on the 22d, there was nothing then capable of assignment. As the case was not decided on any such point, and the findings may not have been drawn with that in view, we would not, in any event, be disposed to affirm on that ground. It is undoubtedly the law that where a person is not engaged in, or under contract for, any employment, the mere possibility of being employed and earning wages in the future is not assignable, being a mere possibility coupled with no interest. But, in view of all the provisions of the city charter relating to the letting of contracts for the construction of public improvements, we are not prepared to say that the money that might become due on such contracts does not have a potential existence, so as to be the subject of assignment, even before the execution of a formal written contract, to which the date named in the findings presumptively refers. But we do not think that question is properly presented by the record.

Order reversed.

(Opinion published 57 N.W. 461" court="Minn." date_filed="1894-01-05" href="https://app.midpage.ai/document/griggs-v-city-of-st-paul-7968221?utm_source=webapp" opinion_id="7968221">57 N. W. Rep. 461.)