31 P. 620 | Cal. | 1892
It is alleged in the complaint that on the twenty-third day of April, 1889, one Walter R. Hall was doing business in the town of Colusa, and was indebted to the plaintiffs in a certain large sum of money; that he was the owner of a large amount of book accounts and debts, due him from divers persons, and bills receivable; that on the day named he executed and delivered to the plaintiffs an agreement in writing, a copy of which is set out; that on the first day of August, 1889, he filed in the superior court of Colusa county his petition, schedules, and inventory in insolvency, and was thereupon adjudged to be an insolvent debtor; that defendant was appointed receiver, and afterward assignee, of the estate of the insolvent, and that he duly qualified and entered upon the discharge of his duties as such; that defendant, as such receiver, and assignee, took possession of all the property and estate of the insolvent, including the said book accounts, debts, and bills receivable, and thereafter collected of the money due on such accounts, debts, and bills a sum aggregating $2,000; that before the commencement of this action, and while defendant still retained in his possession the money so collected, plaintiffs demanded of him that he pay the same to them, but he wholly failed, refused and neglected to so pay the same or any part thereof. Where
“Whereas, I am this day indebted to the firm of Kirk, Geary & Co., of Sacramento, Cal., in the sum of five thousand four hundred thirty-nine dollars and fifty-nine cents, ($5,439.59,) $4,024.28 being balance due on merchandise account, and $1,415.31 being amount advanced by them to me for the purpose of paying the claims of Redington & Co. and Chas. A. Bayly against me; and whereas, I am desirous of providing for the payment of said indebtedness: Now, therefore, I do hereby agree that I will pay said firm at least two thousand seven hundred and fifty dollars ($2,750.00) within one year (1 yr.) from the date of this indenture, and to that end will make monthly remittances to said firm of as large an amount as I can; and for the purpose of further providing for the payment of said indebtedness, and in partial satisfaction thereof, (i. e., to the extent of the collections and remittances hereinafter referred to), I hereby assign and convey unto said firm of Kirk, Geary & Co. all my book accounts and bills receivable, including all debts of every kind due me from any person; and I hereby agree with the said firm to represent it as its agent henceforth in the collection of said bills and book accounts; and I will reduce the same into cash as speedily as possible, and will remit to said firm the proceeds of such collections as soon as I obtain the money thereon. The whole amount of my indebtedness to said firm shall be fully paid within two years from the date of this agreement, and said indebtedness shall bear interest from date, at the rate of eight per cent per annum, payable quarterly. This indebtedness, however, which is to be secured, further, by a mortgage to be executed by me and W. T. Gamblin, in favor of said firm, shall be considered due at any and all times during the continuance of this agreement, at the option of said firm, without notice to me.
“In witness whereof I have hereunto set my hand this twenty-third day of April, in the year one thousand eight hundred and eighty-nine.
(Signed) “WALTER R. HALL.
“Witness: ALBERT M. JOHNSON.”
It is evident that the conclusions of the court were based upon the theory that the plaintiffs could not recover for two reasons: (1) Because the transfer from Hall to them was not accompanied by an immediate delivery and followed by an actual and continued change of possession of the things transferred; and (2) because there was no averment in the complaint, or proof on the part of the plaintiffs, that the indebtedness due from Hall to them had not been paid. We do not think this theory sound. The instrument was clearly intended as an assignment of the accounts, bills and debts mentioned—whether absolutely or as security is immaterial —and, as between the parties, it unquestionably operated to transfer them to plaintiffs, and gave the plaintiffs a right to have the moneys when collected applied to the payment of their debt. The “things transferred” were “things in action,” commonly called “choses in action,” and were expressly excepted from the operation of the rule declared in section 3440 of the Civil Code. An assignee in insolvency has only such powers as are given him by the insolvent act. He may take into his possession all the estate of the debtor, and may sue in his own name and recover all the estate, debts, and things in action belonging or due to the debtor, and may also have and recover from any person receiving a conveyance, gift, transfer, payment, or assignment, made contrary to the provisions of the act, the property so conveyed or transferred: Secs. 21, 55. But unless the transfer is made contrary to the provisions of the insolvent act, and is thus
The second proposition, that plaintiffs could not recover because they failed to allege or prove that Hall’s indebtedness to them had not been paid, was probably based upon the supposed authority of eases holding that a complaint to recover money due on contract is fatally defective unless it avers nonpayment. These cases, however, are not in point here. The complaint did aver demand made upon defendant for the money sought to be recovered, and that he wholly failed and refused to pay the same. We are cited to no case, and we know of none, which holds, in effect, that it was necessary to allege the nonpayment of Hall’s indebtedness, and in our opinion such an allegation was not necessary. When one obtains an interest in a chose in action, by indorsement or transfer, the presumption is that that interest was obtained for value, and that it continues in the holder, until the contrary is shown. The point has several times been made that one suing on a promissory note, as maker or indorsee, should allege that he was still the owner and holder of the note, but it has always been held that no such averment was required: Poorman v. Mills, 35 Cal. 118, 95 Am. Dec. 90; Hook v. White, 36 Cal. 299. Here, as we have seen, the plaintiffs obtained an interest in the accounts, bills, and debts transferred to them by Hall. The transfer was doubtless made to secure the payment of Hall’s indebtedness to them, but if so, no presumption can be indulged that the indebtedness had been paid, and the interest had therefore reverted to the assignor. If such were the fact, it was a matter of defense, and the burden was upon the defendant
We concur: Foote, C.; Haynes, C.
For the reasons given in the foregoing opinion the order appealed from is reversed and the cause remanded for a new trial.