2 Kan. App. 538 | Kan. Ct. App. | 1896
The opinion of the court was delivered by
But one question is presented for our consideration, and for the sake of brevity we will consider it in this form : Who was the owner of the judgment rendered on May 29, 1890, in the case of S. L. Parkhill against Hunter Bros.? The court, among others, made the following findings of fact:
"No. 7. The attorneys who brought the suit for the Parkhills against the plaintiffs herein (Hunter Bros.) were defendants herein — T. M.. Noble, N. T. Van Natta and J. F. Close. At the time of the bring*541 ing of the same, there was no definite understanding as to the fees, although it was talked between them that whatever fees the attorneys recovered would have to be recovered out of any judgment Parkhill might recover against the Hunters ; for the Parkhills ■were in failing circumstances — owing more tb an they could pay. Immediately after the hearing of the motion to dismiss, it was agreed between said attorneys and S. L. Parkhill that the attorneys should have, for their fees in the suit of S. L. Parkhill to recover from Hunter Bros, the value of property, one-lialf of the judgment recovered, and out of the other half they should be entitled to retain such an amount as their services were reasonably worth which they had rendered S. L. Parkhill in other suits, and as much as they have rendered or might render Emma D. Park-hill in her suit. This agreement was oral and not in writing, and made as above soon after the hearing of the motion to dismiss, in October, 1889.”
“ No. 9. Immediately upon the reception and reading of the verdict, said Parkhill executed and delivered to his said attorneys, who have since, retained the same, the following written assignment:
‘Belleville, Kan., October 4, 1889.
‘ For a valuable consideration, I hereby sell and assign all my right, title to T. M. Noble and VanNatta & Close in and to a certain judg ment I have this day recovered against Hunter Bros., in the case of S. L. Parkhill v. Richard Hunter and Henry Hunter, partners as Hunter Bros., for the sum of $480, in the district court of Republic county, Kaiisas.
[Signed]
S. L. Pakkhill.’”
The court further found that the date of the written instrument above set forth was the date upon which the verdict of the jury was rendered, but that no judgment was rendered upon said verdict until after the hearing of the motion for a new trial, which was on the 29th day of May, 1890 ; that, between the dates of rendering the verdict and the giving of the judgment, Parkhill filed a motion for judgment on the verdict, which the court refused to render until after the motion for a new trial should be heard.
“No. 3. Although, as between the defendant S. L. Parkhill and his attorneys, they had a claim against him for one-half of the amount of his judgment against Hunter ,Bros., to wit, $204, also the reasonable value of their services rendered about other matters, to wit, $70, making a total of $274, yet they had no attorney’s or other lien for this amount, or any portion thereof, as against the Hunter Bros., and, under all the circumstances, there were no steps they could take as against Blunter Bros, to cut off the right which they (Blunter Bros.) had to have their judgment for $947.95 offset against any judgment Parkhill might recover against them on account of any matter then existing between them. Neither could Parkhill assign his judgment against the Hunters or the claim on which it was based to the attorneys or any one else for attorney’s fees or other consideration so as to cut off that right of the Blunter Bros.”
Reading findings of fact 7 and 9 together, was there not virtually an assignment to the attorneys of the sum found to be due by the jury, even though no judgment had been rendered thereon? Does not the word “judgment” used in the written instrment evidently refer to the mere fact of recovery by the verdict, and is not this written instrument - sufficient to carry with it the right to all future benefits that might arise by reason of the fact that a certain sum had been found due, and could not the attorneys, in the event of a new trial being granted, rightfully claim that the cause of actipn from that date had been assigned to them? Did not it assign the claim that Parkhill had against the Hunter Bros.? The same rule should apply in construing this as .in the case of a sale of personal property, “that the intent of the parties controls, and if they intended a perma
Section 420, civil code, provides :
‘ ‘ In addition to the causes of action which survive at common law, causes of action for mesne profits, or for injury to the person, or to real or personal estate, or for any deceit or fraud, shall also survive ; and the action may be brought, notwithstanding the death of the person entitled or liable to the same.”
It is conceded that the action of Parkhill against Hunter Bros, was in tort. Can such a claim be assigned? We think so. The taking of a man’s money tortiously is such a tort as affects and injures his personal estate, and at the same time it increases the value of the estate of the person who receives it, and such a claim can be assigned. In Stewart v. Balderston, 10 Kan. 142, Mr. Justice Valentine, in delivering the opinion of the court, says :
“ Under the statutes of this state, a cause of action for money had and received, whether obtained tortiously or otherwise, as well as every other cause of action which affects injuriously the estate of the party injured, is such a cause of action as will survive after the death of the party injured to his legal representatives. (Civil Code, §§420, 421.) And, according to many of the authorities which we have already cited, this is conclusive proof that the cause of action is assignable. As long ago as 1828 it was said, in the case of Comegys v. Vasse, 1 Pet. 213, Mr. Justice Story, delivering the opinion of the court, that, ‘In general, it may be affirmed, that mere personal torts, which die with the party and do not survive to his personal representatives, are not capable of passing by assignment; and that vested rights, act rem and in re, possibilities coupled with an interest and claims growing out of and adhering to property, may pass by assignment.’ And this doctrine has been generally followed in this*544 country ever since. It is now generally said that survivorship of a cause of action and assignment go hand in hand.”
We think, therefore, that on the 4th day of October, 1889 — the date the written assignment was made — the attorneys were the owners of any and all rights that Parkhill had before under his claim against Hunter Bros. Until the cause of action became merged into a judgment, and thus became a debt, Hunters could not set off. “A verdict in an action in tort does not convert the tort into a debt; it does not become a debt until it is merged into a judgment.” (Stauffer v. Remick, 37 Kan. 454.) The Hunters' right of set-off arose after judgment, which was months after the claim was assigned.
The judgment in this case will, therefore, be reversed, and cause remanded with instructions to award to the defendants, Noble and Van Natta & Close, so much of the judgment against Hunter Bros, and in favor of S. L. Parkhill as found by the trial court to be due them from Parkhill for services, viz., $274, and that the balance of said judgment be credited upon the judgment of Hunter Bros, against Parkhill.