Moore v. Lowrey

| Iowa | Jul 23, 1868

Beck, J.

of a aeM: ' Miles & Keeler, being in failing circumstances, were indebted to the intervenors, Fowler & Mun-son. In settlement of this claim against them they transferred to Fowler & Munson the claim they held against Lowrey, the garnishee, on the 18th day of January, 1866, by an instrument of which the following is a copy :

“H. Lowrey, Esq., Dubuque, Iowa,

To Miles & Keeler, Dr.

“1866. Jan. 18. To balance of account to date,.. $788 40

“ H. Lowrey, Esq.:

“ Please paji-the above balance to Messrs. Fowler & Munson, or order, and oblige,

Miles & Keeler.”

To this instrument was affixed a two cent U. S. internal revenue stamp. The evidence discloses the fact that it was the intention of Miles & Keeler to transfer and assign the claim they held upon Lowrey to Fowler & Munson, and the instrument above set out was by the parties intended to effect that purpose. Lowrey was, within a day or two, notified by Miles & Keeler, by letter, that they had drawn on him in favor of Fowler & Munson for the balance due them, but no information was conveyed in the letter of the nature of the transaction further than the fact that they had drawn an ordinary draft or order. The garnishee process was served upon Lowrey on the 20th day of January, two days after assignment of the claim to the intervenors, but the draft, or “ order,” was presented prior to his answer to the process.

The plaintiffs insist that the transaction between Miles & Keeler and Fowler & Munson did not operate to assign and transfer the debt against the garnishee, and that judgment should, therefore, have been rendered against him in their favor.

No particular form is necessary to constitute an assignment of a debt. If the intent of the parties to affect an assignment be clearly established, that is sufficient. Neither is it necessary that the assignment be in writing. If in writing, it may be in the form of an agreement, an order, or of any other instrument which the parties may use for that purpose. Neither is it necessary that the intent and the contract of the parties fully appear in the writing, but they may be otherwise shown. See Conyngham v. Smith, 16 Iowa, 474; Wiggins v. McDonald, 18 Cal. 127; Macomber v. Doan et al., 2 Allen, 542; Edwards v. Daly, 14 La. An. 384; Newly & Taylor v. Hill & Million, 2 Met. (Ky.) 531.

The District Court was clearly justified in finding from the evidence that it was the intention of Miles & Keeler to assign the debt held by them against the garnishee, and that they did, in fact, assign and transfer it to the intervenors.

a. —order: stamps: evidence. These views dispose of all the objections raised by plaintiffs. One or two, however, may properly receive special notice. It is insisted that the order, if . . . intended to operate as an assignment, is void, because not properly stamped. But it is not claimed that the order is itself an assignment, or without more, is evidence of an assignment. It is, therefore, properly stamped.

It is objected, that the order is negotiable, and was not taken by the intervenors in payment fro tanto of their claims upon Miles & Keeler. These facts may be admitted, yet it does not follow that the assignment is thereby defeated. If the assignment of the debt was made in good faith, and the order given for the purpose of effectuating its collection, the negotiability of the order certainly could not defeat the assignment. •

3. collateral secunty. Neither is it sufficient cause to (jefeat the assignment, if it be true tbat Miles & Keeler were not discharged !Pr0 twito of tbeir indebtedness to tbe intervenors. The assignment would have been good if the debt against Lowrey was taken only as collateral security by Fowler & Munson. .

Certain, exceptions were taken to portions of depositions taken by tbe intervenors on the grounds of incompetency and irrelevancy of tbe evidence contained therein. Tbe objections were overruled by tbe court below, and tbe depositions were read in evidence. We do not think tbe objections, in point of fact, were well taken, and were therefore correctly overruled by tbe court.

A gabnish- . ”eenotami chargeable wia interest, Tbe intervenors, Fowler & Munson, upon tbeir appeal, insist tbat tbe District Court erred in refusing to render judgment for interest upon tbe debt from the ■ date of the order to tbe day of trial. Tbe , . 0 _ authorities seem to agree, tbat unless tbe garnishee used tbe money for which be is liable^ be is not chargeable with interest. Tbe courts presume, unless tbe contrary appear, tbat it was not used by him, but kept as a separate fund to answer tbe judgment of tbe court. If be appears as a litigant in the proceedings, it will overcome this presumption. And, we presume, it would be proper, upon issue joined, to show that, in fact, the money was not kept as a separate fund, but actually used by him, and thus charge him with interest upon tbe debt. See Drake on Attachment, § 665, and authorities cited.

But tbe garnishee in this case did not deny the indebtedness and in no way appears as a litigant. Neither is the presumption that be kept tbe money as a separate fund attempted to be overcome.

Section 3207 of tbe Kevision, which provides tbat a garnishee may, in order to exonerate himself from liability? pay tbe money to tbe sheriff, is cited to support tbe view tbat intérest should be assessed against tbe garnishee. It is said that, under this section, he is not compelled to keep the money, and, therefore, ought to pay interest upon it. But neither is he compelled under this section to pay it over to the officer of the court. It seems to be left to his option whether he will retain it or pay it into court. This provision cannot, therefore, change the rule of the authorities above cited.

It will be observed that the debt of the garnishee was upon an account and not upon an interest-bearing contract.

"We find no errors in the record, and the judgment of the District Court, upon the appeal, both of the intervenors and plaintiffs, is

Affirmed.