Johnson County v. Bryson, 27 Mo. App. 341

Johnson County v. Bryson

27 Mo. App. 341 | Mo. Ct. App. | 1887

Ellison, J.

One Keene contracted with Johnson *347county to erect abutments for an iron bridge which was to be built over one of the streams in that county. He claimed there was due him for this work $771.65. On November 24, 1885, he assigned, in writing, his claim to interpleader Bryson. Some time prior to this assignment, and before he had begun his work, he contracted for stone with interpleader Guihen, to be put into the abutments. Guihen objected to furnishing the stone unless he was secured; thereupon Keene verbally assigned to him, as is contended, as much of Ms (Keene’s) claim against the county as the stone would amount to when furnished. Upon the faith of this Guihen furnished the stone. The evidence of Guihen in support of this verbal assignment is as follows: “Some two or three weeks after Keene entered into this contract with the county he made the contract with me. At the time I agreed to do it — at the time we entered into the contract — I says to Keene, ‘ You are a stranger to me and I want to make sure of my pay; can’t you give me some sort of security for my pay if I do the work ? ’ He says, ‘You will have the county for it; you shall be paid directly by the county, on my contract; this shall be your security. You shall draw whatever your job' amounts to yourself from the county. The county will become vour paymaster ; you shall be paid directly by the county out of the proceeds of my contfact. I will not collect it, but you shall do that yourself.’ I relied upon his promise and looked for my pay from the' county out of the proceeds of Keene’s contract with the county. I would never have furnished this material to go in the abutments but for the promise that I was to be paid out of the proceeds of Keene’s contract with the county, and by the county, and that the money, as he said, should be paid directly to me by the county. Keene, I understood, was not worth anything, so when he told me this I felt secure, and did the work and looked to the county for pay. The material I furnished under this agreement with Keene, at seventy-five cents-*348per perch, came to $110.50. I have never got a cent fon it.”

On November 20, 1885, Guihen notified the county court, in session, of this assignment, and in themonth of February following he presented his claim against the county. Bryson never notified the county of his assignment, though just before he received it he conversed and •advised with the presiding judge of the county court in reference thereto. The county of Johnson filed her bill stating there was due from the county, on account of the bridge abutments, a balance of $110.50; averring that this sum was claimed by both Bryson and Guihen, and asking that they be required to interplead for the same. On a trial between these interpleaders, a finding was made by the court against Guihen, and he sues out his writ of error.

From this statement it appears that if Guihen has an assignment of this claim, it is prior, in point of time, to Bryson’s. It further "appears that he gave notice to the county court on the twentieth of November, four days ahead of Bryson’s assignment. Bryson never gave .any notice. I regard the contract between Keene and interpleader Guihen as constituting an equitable assignment of so much of the claim against the county as would cover Guihen’s account. Being verbal does not invalidate it. Williams et al. v. Ingersoll, 89 N. Y. 508. That case was where the plaintiffs had been performing, were at the time performing, and expected in the future to perform, legal services for one Heath, and, feeling uneasy about their compensation, made an oral .agreement, “That the plaintiffs should be paid for their said services out of any moneys that the said Heath should obtain, or become entitled to, from any of the matters, suits, and proceedings, in which they should be engaged.” And that they “should have a lien for all sums that might be owing or due them for their said services, and for the services of each of them, and for the services of the attorneys employed by them, *349to the extent of the worth and value thereof, upon any sum he might obtain, or become entitled to, from the said defendants, Lorin and James H. Ingersoll, or from any other person or party connected with said suits, matters,, and proceedings, superior to any right the said Heath might have thereto, and which should be paid to them before the said Heath should have, or be entitled to. receive, any part thereof or right thereto.” The lien was. not sustained as an attorney’s lien. That was especially-disavowed. Nor was it held to be an equitable lien or assignment from the mere promise of Heath that plaintiffs should be paid out of a designated fund. That was also disavowed. But it was upheld as an - equitable assignment from the fact that there was proof showing it was the intention to assign, or to give a lien on, any sum recovered, and that the plaintiffs were to receive the sum recovered, retain out of it their compensation, and pay over-the balance, if any. Earl, J., remarked in that case that: “The form of words used in making the agreement is not alone to receive attention, but all the circumstances of the transaction are to be considered. It is a rule in equity that anything which shows an intention to assign, on the one side, and from which an assent to receive may be inferred, on the other, will operate as an assignment if sustained by a sufficient consideration.” The fact that the subject-matter of this assignment was not in existence at the time of the contract between Gfuihen and- Keene will not defeat the assignment. Courts of equity will support an assignment “ of things which have no present, actual, or potential existence, but rest in mere possibility ; not, indeed, as a present, positive transfer, operative in praesenti, for that can only be of a thing in esse.” 2 Story’s Eq. Jur., sect. 1040; Rutherford v. Stewart, 79 Mo. 216. But it is insisted that, as this was an assignment of only a portion of the debt, it cannot be enforced. Such is the-law in this state as between an assignee and the debtor. Burnett v. Crandall, 63 Mo. 410. But it must be borne-*350in mind that the contest here is between the inter-pleaders, each contending to be assignees of Keene. Johnson county is not making the objection, and it has been held, in a recent case, that the right to object to splitting a single debt into many is one which the debtor may waive. Fourth National Bank v. Noonan, 88 Mo. 372. When Johnson county filed a bill setting up the claims of these interpleaders, offering to pay the money into court, and asking that they be required to litigate their rights to the same, she waived her right to object to a partial assignment. Such objection can only come from the county.

It is contended that this court has no jurisdiction of this cause, as Johnson county is a party thereto. We do not consider the county as a real party to this contest. She filed a bill asking that these interpleaders litigate their right to the money claimed by each. They did so. One of them recovered and the other appeals to this court. We do not consider the case as under the inhibition of section 12, article 6, of the constitution of the state. Other points were made by counsel, but are not considered tenable.

There is no substantial conflict of testimony as to the material parts of this case. The testimony as to what occurred between Keene and G-uihen is not contradicted. It is clear, from circumstances surrounding these parties, as shown by the evidence, that they intended an assignment of the claim now in dispute. But for such understanding Gfuihen would ¡not have furnished the material. He evidently looked to this claim on the county as his security. That he gave notice of his assignment, and that Bryson did not, is well established. ,

For these reasons we discover no necessity for a new trial, and reverse the judgment, with directions for the circuit court to enter judgment for interpleader Cruihen.

All concur.