193 Mo. App. 519 | Mo. Ct. App. | 1916
The plaintiffs, Pickett & Sexton, doing business under the name of The Best Coal Com
The Best Coal Company became wholly unable to pay either claim, and, on February 7, 1914, it executed and delivered to the Railwáy Company a written assignment reciting the delivery of certain carload shipments of coal to the district amounting to “more than $4000;” that the Railway Company had hauled the coal; that the Best Coal Company has “agreed that as security to said Railway Company for the payment of said charges it will assign a sufficient portion of said debt to pay the claim of the Railway Company” therefore, the Best Coal Company, for $1 and other valuable considerations, assigned to said Railway Company “any and all sum or sums of money now due or to become due to the Best Coal Company from the School District of Kansas City to the amount of four hundred and ninety dollars and twenty-nine cents ($490.29).”
The Railway Company presented the assignment to the School Board but it refused to accept or consent to the assignment, as it was denying all liability on the Best Company’s claim.
Thereafter, on February 17, 1914, plaintiffs, Pickett & Sexton, or the Best Coal Company (being one and the same), brought suit against the School Board
On October 9, 1914, plaintiffs, Pickett & Sexton,, executed and delivered to the Sternberg Coal & Mining Company a written assignment of all interest- in the account sued on in the case against the School Board, to secure to the Sternberg Company payment of the said sum of $2981.98 with interest from April 1, 1914, being the amount of money owed for coal sold to the district, “with full authority to proceed to the collection of said account in such manner as may seem best to the said Sternberg Coal & Mining Company. Compromise of said case shall not be made without the approval of the said John Gr. Pickett and R.-J. Sexton. When the account is paid, any surplus over and above the amount of the bill recited shall be paid to John Gr. Pickett and R. J. Sexton, assignors.”
Immediately upon obtaining this assignment, the Sternberg Coal & Mining Company filed a motion in the suit against the School Board to be substituted as party plaintiffs in 'the place of Pickett & Sexton and also a motion for the appointment of a referee. The motion to be substituted as plaintiffs does not seem to have been formally acted upon. Section 1924, Revised Statutes 1909, provides that the court may allow the substitution to be made, or the action may be continued in the name of the original party if the transferee will indemnify him against costs. If no application for indemnity is made by the party making the assignment, it is regarded as waived. [Asher v. St. Louis, etc. R. Co., 89 Mo. 116.] The trial court appears to have regarded the substitution unnecessary under the statute since the plaintiffs were willing for -the case to continue as it was. At any rate the case continued on in the name of Pickett & Sexton as plaintiffs,'but a.referee was appointed as prayed for by
On January 29, 1915, the referee made his report finding for plaintiffs, on the account sued on, in the sum of $4472.78 and for defendant, on its counterclaim, in the sum of $1214.09, being a net finding for plaintiffs in the sum of $3258.69. This report was confirmed by the court on February 13, 1915, and judgment was rendered thereon, which, with interest, amounted to $3454.21.
The School Board being about to pay over the amount of the judgment, the Kansas City Southern Railway Company brought an injunction suit seeking to have the claim under its assignment enforced out of the amount'due from the School Board and to have said claim declared, in equity, to be prior and superior to the claim of the Sternberg Co.al & Mining Company. Thereupon the School Board paid the money
On February 20, 1915, the Sternberg Coal & Mining Company filed its motion, or petition, duly verified, in which it set up the facts with reference to the furnishing of the coal, and the agreement with plaintiffs as to the amount thereof, whereby the account became an account stated; that plaintiffs advised them of the 'suit pending against the School Board and promised that all moneys obtained as a result of the suit would be paid to said Company to the extent necessary to settle said debt; that in consideration of this agreement the Sternberg Company extended further time and credit to the plaintiffs; that on October 9, 1914, the assignment to the Sternberg Company was made “with full authority to proceed with the collection of said account in such manner as may seem best to the said Sternberg Coal & Mining Company;” that the said Company thereupon appeared in said suit against the School Board, the plaintiffs also appearing and agreeing in open court that the said suit should be prosecuted in the name of the plaintiffs for the use and benefit of the Sternberg Coal & Mining Company; that thereafter the Sternberg Company prosecuted the same for their own use and benefit and made proof thereof in that case' before the referee; that the Sternberg Company had no knowledge of any assignment of a part of said claim to the Railway Company but took their own assignment in good faith and without notice of any claims or liens of any kind or character. And said motion prayed that the Sternberg Company’s claim be established in the sum of $2981.98 with interest from April 1, 1914, and that said sum, with $250 attorneys fees, be paid to it by the clerk.
The injunction suit brought by the Railway Company had been assigned to the same Division that
It seems that, before the hearing on the motions, $100 was allowed plaintiffs’ attorney, by consent of all parties, and that then the court ordered $2500 to be paid over to the Sternberg Coal & Mining Company leaving $854.21 to be litigated over.
The court afterwards, sitting as a chancellor, heard the motions and the evidence in support thereof, and found the issues for the Sternberg Coal & Mining Company and against the Railway Company and the plaintiffs. The court directed that, out of the fund' .on deposit, the costs of the hearing on the motions be first paid; that then the Sternberg Coal & Mining Company be paid the full amount of its claim, which with interest, amounted to $3165.83 less the sum of $2500 already paid, making the balance to be paid $665.83, and that what was left be paid to the attorney for the Sternberg Coal & Mining Company as a fee claimed as a charge and lien against the fund.
Plaintiffs and the Railway Company appealed, but, as we understand it, only the appeal of the latter is now prosecuted or necessary to be considered.
We think the court was right in ordering the Sternberg Coal & Mining Company’s claim to be paid in full notwithstanding the fact that the Railway Company’s partial assignment was prior in point of time to that of the Sternberg Coal & Mining Company.. There is no doubt but that the Railway Company’s-, assignment was partial only and that the School Board did not consent to the assignment, while the
It seems to us, however, that there was no suit in equity until the Railway Company filed its motion or intervening petition and that while its claim rested
We are of the opinion that the judgment should be affirmed in all respects. It is so ordered.