Schilling v. Mullen, No. 8382

No. 8382 | Minn. | Oct 24, 1893

Collins, J.

In Canty v. Latterner, 31 Minn. 242, (17 N. W. Rep.-385,) it was determined, in accordance with the weight of authority,, that an assignment of a part interest in a demand or obligation might be made, and that the courts would recognize and protect the equitable interest of the assignee. This doctrine was referred to in Dean v. St. Paid & Duluth B. Co., 53 Minn. 504" court="Minn." date_filed="1883-06-16" href="https://app.midpage.ai/document/dean-v-st-paul--duluth-railroad-7967935?utm_source=webapp" opinion_id="7967935">53 Minn. 504, (55 N. W. Rep. 628,) where the real question was whether a separate and independent action could be maintained by the assignee to recover his share-of the demand, the debtor refusing to recognize the assignment. The conclusion of the court was that such an action would not lie, but it was said, in substance, that where the assignor and assignee were joined as plaintiffs, or the former, not joining, was made a defendant, so that the whole controversy might be settled in one suit, the action could be sustained. By means of proper allegations in the complaint, the assignor, McFadden;-was made a party defendant to this action, and on this branch of the case the court below ruled-correctly when ordering judgment for plaintiffs on the pleadings.

In addition to the one just disposed of, several points are made-by appellant’s counsel, only one of which needs special consideration. The others are without merit. The plaintiff’s claim was a little less than $100 when they obtained the assignment from defendant McFadden. In his answer defendant Mullen alleged that prior to the time of the execution and delivery of such assignment, and consequently before he had notice of it, McFadden had received from him a sum exceeding $100 upon a promise to return and repay the-same; that he had not returned or repaid any part thereof; and that the whole remained due and unpaid. These allegations constituted, it is claimed, a complete defense to plaintiffs’ cause of action, because they would have been a perfect defense, by way of counterclaim, if found in an answer interposed in an action for services brought by McFadden against Mullen.

From the pleadings in this action it clearly appears that under McFadden’s contract with Mullen the former had earned a trifle-less than $800 between the day upon which due notice of the assignment was served on the latter and the day this action was brought, some eleven months, and it was alleged in Mullen’s answer that he had iully paid McFadden for the services admitted to have been rendered, as before stated, so that it may be taken as conclusively shown that, when this action was commenced, the former was indebted to the latter about $700, over and above all set-offs, or that, subsequent to notice of the assignment, he had paid over about that sum to McFadden, ignoring the fact, which had been brought to his knowledge, that these plaintiffs had an assignment for a portion of it. If he still owes the amount earned, the plaintiffs are entitled to the sum which McFadden assigned and ordered to be paid over to them. If, upon the other hand, Mullen has paid over 'to McFadden the entire amount of his earnings, thus paying over money which belonged to plaintiffs, and in total disregard of the assignment, the loss, if any, will have to be sustained by Mullen, not by plaintiffs. The notice of assignment duly served upon Mullen fixed the rights of all parties, and protected the assignees. The effect of such assignment and notice could not be avoided, directly or indirectly, by anything Mullen might do.

(Opinion published 56 N. W. Rep. 586.)

Judgment affirmed.