Ruple ex rel. Lewis v. Bindley, No. 168

No. 168 | Pa. | Oct 27, 1879

Mr. Justice Trunkey

delivered the opinion of the court,

The evidence was amply sufficient to warrant a jury in finding that Ruple contracted to build a flight of stairs for Bindley for $133, Bindley' to first pay out of said sum $28.15 which Ruple owed -to England & Bindley; that the order for $104.85 was given for the balance of the contract price, in consideration that Lewis would furnish Ruple with material and money to enable him to do the work, and they were so furnished; that Bindley had notice of the order about the time the work was commenced and before he had paid anything to Ruple; and that Bindley paid $82 to Boyd on an order given after said notice, and to Ruple the balance of the contract price. The jury were instructed that there was nothing in the evidence to justify the plaintiff’s recovery. If it were material to the plaintiff’s case that Bindley agreed to pay the order, on completion of the work, though he refused a written acceptance, the conflicting testimony on this question should have been submitted.

An assignment, for a valuable consideration, of demands having at the time no actual existence, but which rest in expectancy only, is valid in equity as an agreement, and takes effect as an assignment, when the demands intended to be assigned are subsequently brought into existence: Field v. City of New York, 6 N.Y. 179" court="NY" date_filed="1852-04-05" href="https://app.midpage.ai/document/field-v--the-mayor-c-of-new-york-3613315?utm_source=webapp" opinion_id="3613315">6 N. Y. 179; East Lewisburg Lumber & Manuf. Co. v. Marsh, Dunkel et al., ante, p. 96. In Field v. The City, it was held that assignments of parts of a demand to different persons, to secure payments to them of specific sums, in succession, are good and will be enforced in equity. Whether such assignments are valid in Pennsylvania need not now be said; for the order covered the whole, after deducting the sum to be paid, by the terms of the contract, to England & Bindley.

The form is immaterial so that there be a clearly expressed intention of an immediate transfer of, the right to the assignee. Where one was indebted to a number of persons and remitted a sum of money to B., with orders to give specific parts to certain creditors, it was held that B. became a trustee for those creditors, and that they, thereupon, acquired such an interest in the trust fund as could not be divested by an attachment against the debtor, though some of the creditors had no notice of the trust before the service of the attachment: Sharpless v. Welsh, 4 Dall. 279" court="SCOTUS" date_filed="1803-09-01" href="https://app.midpage.ai/document/sharpless-v-welsh-84731?utm_source=webapp" opinion_id="84731">4 Dall. 279. An order to the drawer’s attorney, to pay to W. the amount of a note on H. when collected, is an assignment of the fund, by the agreement of the parties, and cannot be revoked, even if the draft was not accepted by the drawee: Nesmith v. Drum, 8 W. & S. 9. In Caldwell v. Hartupee & Co., 20 P. F. Smith 74, an order for part of a fund was held to be a .valid equitable assignment. Caldwell was to receive money for use of Hartupee & Co., who were indebted .to a firm of which Caldwell was a partner. Hartupee & Co., gave an order to Cuthbert for $1500, out of proceeds of the last note coming to them, which, on presentation, Caldwell refused to accept, saying, “ Hartupee & Co. owed them money and he was going to apply it on their book account.” At the time of said refusal Caldwell had in his hands only about $30, but afterwards received more than enough to pay the order. On the trial Caldwell’s defence of set-off was rejected as to the amount of the order, and allowed for the balance in his hands.

The defendant seems to rely on Jermyn v. Moffitt, 25 P. F. Smith 400, where it was held that a transfer of “ a debt to arise for wages not yet earned, against any person by whom the assignor may afterwards be employed, although followed by a subsequent notice of the assignment to such an employer, is insufficient, without acceptance, to make a valid transfer of the debt against the employer.” The soundness of this principle is unquestioned, and was strictly applicable to the facts of that case. Jermyn’s name was not in the instrument; Leslie, the assignor, had no contract with him, was not then in -his employ, and, consequently, there was neither a present nor expectant fund on which the assignment could attach. On the trial, the point that “ an assignment can only be made of moneys due or owing, and not in futuro of moneys to be earned,” was refused, with answer that “a party is competent to assign wages to come due if the vested rights of third parties are in nowise prejudiced thereby;” and this court said there was no error in that.

We are of opinion that the order by Ruple to Lewis was an equitable assignment; and, in connection with the facts which the jury might well have found, had the evidence been submitted, the plaintiff was entitled to recover. Eor the present inquiry such facts must be considered as existing. The first, second, third and fifth assignments of error are sustained.

It may be presumed that if the case had been given to the jury, the matter contained in the fourth assignment would have been properly explained. This suit is not on the alleged promise of Bindley to pay Lewis, but on the contract assigned by Ruple.

Judgment reversed and venire facias de novo awarded.