Hutchins v. Watts, 35 Vt. 360

Hutchins v. Watts

35 Vt. 360 | Vt. | 1862

Kellogg, J.

In the case of Noyes v. Brown and trustee, 33 Vt. 431, it was held that an assignment of a chose in action by words, without writing, operates as an equitable transfer of it, and, when followed by notice thereof, from the assignee to the debtor, will be protected and enforced by courts of law, against a subsequent attachment by trustee process.

It is claimed by the plaintiff that no .assignment by Watts, the principal defendant, of the effects and credits in the hands of Choate, the trustee, to Sargeant, the claimant, was ever consume mated, and that the facts only show an agreement to assign at some future time ; but we think that the commissioner’s report does not sustain this claim. The report finds that Watts, in an interview with Sargeant, “ agreed to transfer to him his interest in the previous year’s business with Choate.” This statement, *362when isolated from the context and literally interpreted, might possibly be take^ to refer to an assignment to be executed in futuro. But it is to be taken in connection with the other facts reported by the commissioner, viz ; — -that Choate was thereupon called in, and, in the presence of the claimant, was informed by Watts that he had transferred his interest in “ the concern ” to the claimant, and was requested by Watts, at the same time, to pay over to the claimant whatever his, (Watts’,) interest might be, It is also especially to be considered in connection with the commissioner’s finding, that “ it must have been understood by all three,” (Watts, Choale, and Sargeant,) “at this time, that Choate was to account to Sargeant for Watts’ interest in the concern, whenever the concern should be settled, and the amount realized out of the assets. ” These facts and this finding show conclusively that it was a present and perfected assignment, which was in the contemplation of the parties, and not an assignment, or transfer, which was to be made or perfected at some future time- Accordingly, we think that, as between Watts and the claimant, the effects and credits of Watts in the hands of Choate, were effectually transferred or assigned by Watts to the claimant.

The plaintiff also claims that there was no notice to the trustee of this transfer or assignment by Watts to Sargeant. The facts and finding of the commissioner above referred to, show that the notice to the trustee was clearly sufficient in its terms. But it is insisted that it was ineffectual because it proceeded from Watts, and not from "the claimant; and the case of Webster v. Moranville and trustee, 30 Vt, 701, is cited in support of this position. We have no disposition to qualify the rule upon this subject, which was adopted in that case, or to recede from it in any respect. It appears in this case that, the notice to the trustee was given by Watts, in the presence of the claimant, and without objection from him. His silence, under these circumstances, in connection with the other facts found by the commissioner, was equivalent to an adoption of the act by him ; and the commissioner and the county court wore justified in inferring from these facts that the notice was given with his approbation, and by his procurement. This would bring the *363case within the rule adopted in Webster v. Moranville and trustee. See also Downer v. Marsh and trustee, 28 Vt. 558. The time when the transfer or assignment by Watts to the claimant was made, and when this notice was given to the trustee, is conceded to have been previous to the commencement of this suit. In our judgment, the plaintiff’s objections to the claimant’s title to the effects and credits of Watts in the hands of the trustee, and to the sufficiency of the notice to the trustee of that title, are not well taken.

The judgment of the county court that the trustee is not chargeable as the trustee of the principal defendant, and that the fund in his hands belongs to the claimant, is affirmed.