| Mo. Ct. App. | Jan 8, 1900
The Acme Cement Plaster Company— a corporation — was garnished on an execution which was issued, on a judgment in favor of Hax and other creditors against S. A. Walker.
The garnishee, in answer to the fifth interrogatory exhibited against him by the creditors, stated 'that, “the defendant, S. A. Walker, at the time of the service of the garnishment was and now is in the employment of the garnishee, receiving as compensation for his services a salary of four thousand dollars ($4,000) per 'annum, payable monthly in advance, and in addition thereto five (5) per cent of the net earnings of the garnishee; The defendant is a resident of St. Joseph, and is a married man and the head of a family. The garnishee has paid the fixed compensation payable monthly as aforesaid as it became due and payable to the said S. A. Walker, and there is nothing now due or owing to him on account thereof.
“The defendant at or about the time of his employment by the garnishee and long before the service of garnishment in this case assigned that portion of his compensation covered by the five (5) per cent of the net profits of the garnishee for value and in writing to Martha Walker, who presented the said assignment to the garnishee and demanded payment of the said portion of the compensation included therein, and the garnishee has since then paid that portion of said defendant’s compensation as it accrued and became due and payable to the said assignee, Martha Walker. This gai^iishee did not owe the said defendant anything on account of the compensation covered by said assignment at the time of the service of the garnishment, but afterwards on or about the twenty-second day of November, 1897, there became due to him on account thereof the sum of nine hundred and twelve dollars and fifty cents ($912.50), which sum on said day the garnishee paid by virtue of said assignment to the said Martha Walker,*451 and there is nothing now owing by the garnishee to the said defendant on any account whatever.”
The creditors, in their denial, controverted generally the answer of the garnishee, and then specially alleged the pretended assignment of the five per cent earnings of the garnishee was made, if made at all, -with the design and purpose, on the part of the defendant and Martha Walker, the assignee, of -hindering, delaying and defrauding the creditors tin the collection of their indebtedness against defendant, and of which fraudulent intent and purpose the garnishee had knowledge; and to that extent it colluded with defendant, and said assignee, to defraud the creditors of the defendant. The reply was a general denial.
Under our practice, the denial of the answer by the creditors stands in the place of the petition in an ordinary action at law. Bank v. Dillon, 75 Mo. 380" court="Mo." date_filed="1882-04-15" href="https://app.midpage.ai/document/union-bank-v-dillon-8007030?utm_source=webapp" opinion_id="8007030">75 Mo. 380; Bunker v. Hibler, 49 Mo. App. 536" court="Mo. Ct. App." date_filed="1892-05-03" href="https://app.midpage.ai/document/bunker-v-hibler-8260382?utm_source=webapp" opinion_id="8260382">49 Mo. App. 536. The issue is not raised by the interrogatories and -answer of the garnishee, but by the denial of the answer and reply thereto. The interrogatories and. answer -are merely preliminary to the framing of the issue.
The denial in this case, in effect, admits the assignment but assails its validity on the ground of fraud and collusion. Bauer v. Wagner, 39 Mo. 385" court="Mo." date_filed="1867-01-15" href="https://app.midpage.ai/document/bauer-v-wagner-8002094?utm_source=webapp" opinion_id="8002094">39 Mo. 385; Nelson v. Brodhack, 44 Mo. 596" court="Mo." date_filed="1869-10-15" href="https://app.midpage.ai/document/nelson-v-brodhack-8002686?utm_source=webapp" opinion_id="8002686">44 Mo. 596. The issue thus made was whether or not the assignment was fraudulent as to the creditors. The burden of proof was on the creditors. If no evidence was introduced to overthrow the answer of the garnishee, it was conclusive in his favor. Bunker v. Hibler, supra; Waples on Attach. & Gar. 376.
But whether -the assignment was admitted or not by the denial seems of no moment now, since it was introduced in evidence at the trial. The undisputed evidence disclosed that the defendant, at the time of the service of the garnishment, was, under -a previously made contract with the garnishee, receiving a salary of four thousand dollars per annum for his services, payable monthly in -advance, together with five
The assignment already referred to recited that in consideration of the indebtedness of the defendant to the said Martha Walker — evidenced by a note in the sum of $40,000, dated March 1, 1890, due ten years after date, payable to H. T. Walker and by him assigned to the said Martha Walker and executed by the defendant and J. W. Walker — the defendant assigned to the said Martha Walker all claims and demands that he then had, or might at any time have between the date thereof — July 20, 1896 — and the first day of July, 1899, against the garnishee for money due, and for all sums of money and demands which at any time between the date thereof and July 1, 1899, might become due him for services as manager of the garnishee company, except the sum of $4,000 which the garnishee company had agreed' to pay defendant as a fixed and certain salary. It further recited that, the said Martha Walker was appointed as the attorney in fact of the defendant to collect said five per cent commission from the garnishee, receipt therefor, etc. There was an acceptance of the assignment by the garnishee indorsed thereon, dated July 20, 1896, and signed by W. A. P. McDonald* president. It further appears that the said sum of $912.50, the amount of the five per cent commissions, to which the defendant was entitled in November, 1897, under said agreement with the garnishee, was paid by said garnishee to the said Martha Walker.
There was no evidence adduced tending in the least to impeach the Iona fides of the indebtedness which constituted the consideration for the assignment. The integrity of the transaction between the defendant and the said Martha Walker and that between the defendant and garnishee was
Indeed, it would seem from the brief of the creditors that they do not so much rely upon fraud to avoid the 'assignment as they do upon the ground that it is vague, uncertain and in contravention of public policy. Whether or not the last of the two grounds upon which the validity of the assignment is questioned is covered by the issues made by the pleadings we need not stop to consider, since both parties, in their briefs, seem to have so regarded it.
On January 1, 1895, the defendant entered into the contract of employment with garnishee hereinbefore referred to, which was extended or renewed on the first day of January, 1895 and again in 1896. The contract -therefore under which the wages in question were earned is a renewal or extension of that in existence when the assignment was made. The defendant’s employment was continued under what was in effect the same contract that was in existence when the assignment was made. It has been held in Connecticut, Iowa,
It has been held that the mere expectation of earning money can not, in the absence of 'any contract on which to found such expectation, be assigned. 2 Am. and Eng. Ency. of Law, 1032, note 5, and cases there cited. It is common learning in the law that a man can not grant or charge that which he hath not. Looker v. Peckwell, 9 Vroom. 253. But the reason that it may be different in equity is not that a man conveys in presentí what does not exist-, but that which is in form a conveyance operates in equity by way of present contract merely, to take effect 'and attach to the things assigned as soon as they come into esse, to be regarded before that time as only am agreement to convey, and after that time as a conveyance. Mitchell v. Winslow, 2 Story, 630" court="None" date_filed="1843-10-15" href="https://app.midpage.ai/document/mitchell-v-winslow-9299474?utm_source=webapp" opinion_id="9299474">2 Story, 630. And this is now the well-settled doctrine of this state. Page v. Gardner, 20 Mo. 511; Wright v. Bircher, 72 Mo. 187; Rutherford v. Stewart, 79 Mo. 216" court="Mo." date_filed="1883-10-15" href="https://app.midpage.ai/document/rutherford-v-stewart-8007541?utm_source=webapp" opinion_id="8007541">79 Mo. 216; Johnson Co. v. Bryson, 27 Mo. App. 349; Schubert v. Herzberg, 65 Mo. App. 585. In Field v. Mayer, etc., 2 Seld. 179, it was held that the assignment of a claim against the city for work to be done and materials to be furnished, not founded upon an existing contract and having no potential existence, was valid in equity. In the course of the opinion in the case it is said that, courts of equity will support assignments not only of choses in action, but of con
The invalidity of a grant or assignment at law of a mere expectancy imparts no more than that it is ineffectual to pass the legal title. Equity construes the instrument as imposing a lien upon the res where produced or acquired, leaving the legal title still in the grantor or assignor, who may by some act ratify the grant or assignment, as by delivery of the property, and then the legal'title'is complete in the grantee or assignee. Thompson v. Foerstel, 10 Mo. App. 290" court="Mo. Ct. App." date_filed="1881-05-03" href="https://app.midpage.ai/document/thompson-v-foerstel-8258468?utm_source=webapp" opinion_id="8258468">10 Mo. App. 290; Everman v. Robb, 22 Miss. 653.
But under the assignment in issue, the legal right and title to the wages due the defendant by the garnishee passed to the assignee, as against the creditors herein. In Wallace v. Walter, etc., 16 Gray, 209, it was held that, a written order for the payment of a certain sum out of the wages drawn; for a sufficient consideration, by a workman employed under
The garnishee’s right to apply the wages so due, in payment of the accepted claim of the assignee, was not suspended by the garnishment. Schubert v. Herzberg, ubi supra. As was said in Wellborn v. Buck, 21 Southern Reporter (Ala.), 786: “In tMs case there was a present interest on which the assignment could operate — an actual subsisting engagement for the rendition of services at a fixed compensation. The only uncertainty attending it was the duration of the time or period of service, 'and this uncertainty did not lessen its assignability. The consideration and fairness of the assignment was not impeached and the rights of the assignor was superior to that that could be asserted by any creditor.”
Some complaint is made by the creditors on account of the action of the court in permitting the assignment and the acceptance thereof to be read in evidence in connection with that adduced by them, but in view of the f$ct that the case was tried before the court without a jury, it is not perceived that they were in any way seriously prejudiced by the irregularity.
The action of the court- at the conclusion of the creditors’ evidence in declaring, as a matter of law, that they were not entitled to recover, was, as we think, unexceptionable, and it therefore follows that the judgment must be affirmed.