102 Va. 724 | Va. | 1904
delivered the opinion of the court.
By an ordinance of the City Council of Alexandria, it was provided that certain portions of King street should be graded, paved, and curbed, under the supervision of the city engineer, in a good and substantial manner, using for the pavement vitrified brick, and certain portions of the cost thereof were to be paid by the city of Alexandria and the residue by the W., Alex. & Mt. Ver. By. Co. and abutting property holders. To meet the cost of this improvement chargeable upon the city’s treasury, the sum of $24,000 was appropriated by the ordinance, to be paid out as the work progressed, and pursuant to the ordinance a contract was entered into on behalf of the city with Charles M. Cuvillier, contracting under the style and firm name of Cuvillier & Co., whereby the latter undertook to do the work of paving, etc., King street. This contract provided that “all payments under this contract shall be made upon the certificate of the city engineer, countersigned by the Committee on Streets of the City Council, upon the presentation of which to the auditor he shall draw his warrant" upon the treasurer for the sum so certified to be due, payable out of the funds of the city treasury available for paving and curbing King street, under the ordinance passed May 27, 1902, and approved by the Mayor May 29, 1902.” These certificates were to be issued by E. C. Dunn, city engineer, upon estimates made by him about the first of each month during the progress of the work, and to be made of the amount of work then done, and of the relative value- thereof at the prices named in the contract. In order to carry out this contract, Cuvillier & Co. purchased from the Mack Manufacturing Company the needed vitrified brick, and the Mack Manufacturing Company furnished the brick from time to time as they were called for. On the 15th of October, 1902, Cuvillier & Co. gave to C. H. Yohe, agent for the Mack Manufacturing Company, the following order:
*726 “To E. C. Dunn, Esq., City Engineer:
“Please pay to C. II. Yohe, Agt. for Mack Mfg. Co., amount clue us on block laid in street from time to time as said payments may become due.
(Signed) “CUVILLIER & CO.”
Yohe immediately placed this order in the hands of Dunn, the city engineer, and showed the same to E. S. Leadbeater, chairman of the Committee of Streets of the City Council of Alexandria, which order Dunn accepted, as he testifies, and filed the same in his office. On October 24, 1902, Yohe, as agent as aforesaid, called upon Dunn and received from him an estimate due Cuvillier & Co., amounting to the sum of $1,000, which Yohe took to Cuvillier & Co., and the latter endorsed it payable to C. H. Yohe, agent for the Mack Mfg. Co. Yohe then took the estimate to Leadbeater, chairman of the Committee on Streets, who endorsed the same “Approved,” and it was then taken to E. T. Price, auditor of the city, who drew a warrant on the city treasurer for the amount of the estimate, payable to Cuvillier & Co., Price saying to Yohe that he was in the habit of making the warrant payable in this way so as not to confuse his accounts, but if Cuvillier & Co. refused to endorse the same he (Yohe) could bring it back to him, and he (Price) would make it payable to Yohe as agent for the Mack Mfg. Co. Cuvillier & Co. endorsed the warrant and Yohe collected the money due thereon from the city treasury. On December 6, 1902, Yohe obtained from Dunn, the city engineer, a further estimate on the work done by Cuvillier & Co., amounting to $2,700, which he took to Leadbeater, chairman of the Committee on Streets, who approved the same, and, pursuingthe same course in collecting this estimate as he had done in collecting the former, Yohe received the amount thereof from the treasury of the city. Cuvillier & Co., having become insolvent, on the 21st day of Eebruary, 1903, confessed a judgment in favor of
This judgment was suspended to the extent of $1,500 for sixty days, to enable the Mack Mfg. Co. to apply for a writ of error thereto, and which writ was awarded by one of the judges of this court.
The controversy here, therefore, is between the plaintiff in error, the Mack Mfg. Co., and the defendant in error, William A. Smoot & Co., and the sole question that we deem it necessary to consider is whether or not the order given by Cuvillier & Co. to plaintiff in error, above set out, constituted an assigmnent pro tanto, of the funds due from the city of Alexandria to Cuvillier & Co. as the work done by the latter in paving King-street progressed.
As hacheen remarked, Dunn, the city engineer, testified that he accepted the order, and it was acted upon in disbursing the funds applicable to the cqst of paving King street until the garnishee proceedings by the creditors of Cuvillier & Co. were set on foot. Kot- only was the order acted upon as before stated, but notice of it was unquestionably brought home to every official of the city who had any connection with the execution of the work of paving King- street, or the expenditure of the money expressly appropriated by the ordinance of the Council to meet the cost of the improvement, and, while wholly unnecessary to the validity of the order as an assignment of the funds in question, notice of this order was brought home to defendant in error before they obtained the confession of judgment from Cuvillier & Co. The order was regarded, not only by plaintiff in error, but by Cuvillier & Co. and by Dunn, the city engineer, upon whose certificate, approved by the chairman of the Committee on Streets, alone the funds could be withdrawn from the city’s treasury, as a valid assignment of the funds, pro tanto, to plaintiff in error.
In Hicks v. Roanoke Brick Co., 94 Va. 745, 27 S. E. 598,
And in Clayton v. Fawcett, 2 Leigh, 19, also relied on by defendant in error, the writing in question was held not to constitute an equitable assignment of the fund upon which it was drawn, for the reason that the payment of the amount named was to depend on the drawer being absent. See Brooks v. Hatch, 6 Leigh, 542.
In Chesapeake Classified Bld. Assc. v. Coleman et als., 94 Va. 433, 26 S. E. 843, it was held, “that in order to constitute a valid assignment in equity, all that is necessary is an order from the person to whom the money is due, or coming, on the person in whose hands, or under whose control it may be, to pay to the payee, and where the drawee had notice of the order and thereafter paid the money to the drawer, the drawee was liable to the payee for the amount thereof.” In that case the contractor gave an order on the Building Association in the following words: “Pay to Coleman & Sams, Trustees, for Balance
In 2 Shinn on Attachments, supra, it is said: “Choses in action, other than negotiable instruments, which without fraud have been equitably assigned, are no longer the property of the assignor, and therefore, camiot be garnisheed at suit of assignor’s creditors, and the fact that the assignee cannot, in many States, maintain an action at law, but must sue in the name of the assignor, does not affect the rule; the garnishing creditor can stand on no better footing than his debtor, and the assignor has lost control over it.
“When a debt, fund, or property, has been assigned for a good and valuable consideration, and notice has been given to the debtor of that fact, the same is beyond the reach of the assignor’s creditors by process of garnishment, no matter in what way the debtor was informed of the assignment. It is sufficient that he know that his creditor is divested of all his rights to the debt assigned.”
In Bank v. Barnes, supra, a contractor gave an order on a mining company to deliver to the payee named in the order a check to become due to the drawer, and the payee, the Merchants, &c., Bank, immediately presented the order to the mining company for acceptance, but it was not accepted at that time, as there was no money yet due the drawer. Afterwards the mining company, in disregard of the order, paid the money due to the drawer thereof to a garnishing creditor, and it was held that the order constituted a valid assignment- of the fund, and that the payment made by the mining company did not discharge its liability to the payee of the order.
To the same effect is Philadelphia v. Lockhart, supra, where the order was addressed to the Board of School Controllers and drawn by a contractor, for the building of a school-house in the city of Philadelphia. Notice of the order was given to the school controllers, and it was held a sufficient notice to the city of the rights of the payee in the order.
In the case at bar the City Council of Alexandria, under its contract with Cuvillier & Co., required Dunn, its engineer, to take charge of the work of paving King street, and upon his certificate all payments were to be made on account of the work. This constituted Dunn the agent of the city, and, as was said in the opinion in Philadelphia v. Lockhart, supra, notice to an agent, bound, in the discharge of his duty, to act upon it and communicate it to his principal, is notice to the principal.
No question was raised by the city or any one else as to the
It follows that we are of opinion that the judgment of the Circuit Court is erroneous and should be reversed and annulled; and this court will enter such judgment as the Circuit Court should have entered, namely, that plaintiff in error recover of the city of Alexandria the sum of $1,374.37, with interest from the 21st day of February, 1903, till paid, and also do recover of the defendant in error the costs incurred by plaintiff in error in this court and in the Circuit Court.
Reversed.