Hoffman v. Smith

94 Iowa 495 | Iowa | 1895

Kinne, J.

1 I. The facts in this case, as they appear from the record, are that on November 6, 1888, defendant Smith was appointed as agent for the State Insurance Company, of Des Moines, Iowa, for Le Mars and Plymouth county. At the. time of said appointment, he executed to the company a bond signed by defendant Steele, as surety, conditioned to pay said company “any indebtedness that may how exist from him to said Co., and shall faithfully account for and pay to said Co. all moneys, notes, or securities that may come into his hands, belonging to said Co>., immediately upon receipt of the same, and shall pay said company any indebtedness that he may hereafter incur to said Co., at its maturity,” etc. Under the appointment, Smith served as agent of the company until October 9, 1889, at which time he owed the company the sum of two hundred and sixty-six dollars and ninety cents, and interest thereon. At this date, plaintiff and Smith formed a copartnership for the purpose of car.rying on the insurance business; and it was so carried on by them until January 13, 1892, at which time the firm was dissolved, and, by written agreement, Hoffman became its successor. By the express terms of this agreement, Hoffman became obligated to, “and he does hereby assume and agree to pay the copartnership indebtedness and liabilities of the copartnership and firm of Smith & Hoffman, which were contracted and incurred during the existence of said copartnership of Smith & Hoffman, whether the company which the said firm of Smith & Hoffman represented was in the name of C. B. Smith, or in the name of C. L. Smith, or in the name of J. H. Hoffman.” After the organization of the firm the agency of the State Insurance Company was still held in the name of Smith. At the dissolution of the copartnership there was due said company, from business done by said firm, three hundred and twelve dollars and four cents, and from Smith, on account of business transacted by him prior to the copartnership, two hundred and seventy-nine dollars and thirty-eight cents, including interest, being a total of five hundred and ninety-one dollars and forty-two cents. The company wanted a settlement of the entire indebtedness, and Hoffman agreed, if he could be placed in the same situation that the company occupied with reference to the bond, and if the company would assign the bond and its claim against Smith and Steele to him, he would pay the entire sum of five hundred and, ninety-one dollars and forty-two cents, which included the two hundred and sixty-six dollars and ninety cents and interese due from Smith on account of business done bef ore the firm was formed. This was done. Smith insisted he did not owe the company the amount claimed on old business ; and it was arranged that he should give a note to Hoffman for the amount claimed by the company to be due, wMch:Hoffman was to hold simply as an evidence of the amount individually due from Smith to the insurance company. Having paid this individual debt of Smith to the company, and received an assignment of the bond, Hoffman brings this suit to recover said amount paid, and interest. There is a conflict in the evidence upon some points, but, from the whole record, it is clear that Hoffman was to be put in the same position as the company, with all of its rights to enforce the bond, and that Smith understood and assented to the payment of his individual debt by Hoffman, who was to have resort to the bond for his protection. It is com tended that as Smith made payments upon his account with the insurance company, during the existence of the partnership, to an amount greater than what was due from him to the company at the time the partnership was formed, such indebtedness was canceled, and hence whatever was owing the company at the dissolution of the firm must have been a debt incurred during the existence of the firm. When the firm was organized, new boohs were opened, and the business kept separate from that transacted prior thereto, and chese books showed a balance of three hundred and twelve dollars and twenty-four cents due the company. So it appears that, if there was any election as to payments made by Smith, it was that, all money received on account of the firm’s business should be applied to the former debts. At any rate, that was what was in .fact done. Further than that, Smith would have had no right to use credits arising out of the firm’s business to satisfy his personal debt, as between Hoffman and himself. Again, the arrangement between the parties, to which Smith assented, precludes the thought that the personal debt of Smith had been paid in the manner claimed, or in any manner.

2 It is contended that the assignment of the bond to plaintiff had not been made when this action was commenced, and that the debt itself was not assigned. The evidence is clear that the claim was assigned. No particular form is necessary to constitute the assignment of a debt. All that need appear is an intent to effectuate the assignment of the debt, and that intent may appear from the writing, or it may be shown otherwise. Moore v. Lowrey, 25 Iowa, 338; McWilliams v. Webb, 32 Iowa, 577; Foster v. Trenary, 65 Iowa, 622; Metcalf v. Kincaid, 87 Iowa, 443. Nor is it material that the bond had not in fact been assigned at the time this action was commenced. It had been assigned by parol long before the suit was begun. Further, this question cannot be now raised for the first time in this court. Other reasons exist, which need not now be referred to, which would preclude the defendants from questioning the assignment.

Error is claimed in the admission of testimony. We have examined the record in this respect, and discover nothing prejudicial to defendants. The judgment below was right. — Affirmed.