*1 110 supervision jury, under the
appraisement shall be made damages. proceed Thus ordinary inquiry court, cases of as novo use, upon the trial de public ings property to condemn applicable principles on the jury, and reviewable are triable trial court that the held law; upon such a trial is actions at and being jury of the the verdict possesses power the usual to set aside Worthington v. [City St. Louis inadequate. either excessive or Franklin, City v. (2d) 1066 ; Louis St. (Mo. Sup.), S. W. (2d) 26 W. Mo. S. case that the discretion record We have found from the excessive, against it that verdict trial court told through evidence; misconception of its weight that dis- giving duty, prevented from exercise it was power and matter is one cretion; circumstances the under such our review. judgment Cape follows, therefore, Girardeau reversed, remanded; should be and the cause Common Pleas
Court of recommends. Commissioner so and the foregoing opinion Bennick, C., adopted
PER CURIAM ‘The judgment Cape the court. The opinion of Girardeau as the is, accordingly, reversed, Pleas of Common the cause re- Court J., P. Becker and Haid, Nipper, JJ., concur. manded. Purchasing Respondent Company, Service Ed- Corporation, v. Appellant. (2d) 42 S. W. 39. Brennan, ward Appeals. Opinion St. September 15, Louis Court filed 1931.
Ill *2 August appellant. Walz for
Roy Bergmann, Jos. J. Tomasso and Clark G. Hardeman H. respondent. Williams, E.
F. Amicus Curiae.
BENNICK, C. This is an action for conversion. Originating justice’s court, a the case was on appeal court, taken to the circuit wherein, upon a trial alone, being jury waived, the court a judgment plaintiff, was rendered in against defendant, favor of of $22. the sum A motion for a new trial was filed and over- ruled, following which prayed granted defendant for and was appeal Supreme Court, evidently upon theory that there question live constitutional case. That court found situation, however, that such was and consequently ordered Purchasing the case to be transferred here. Company v. [Service (Mo. Sup.), (2d) Brennan 32 W. S. point regard No in the sufficiency made briefs in the form or pleadings, and as a result their contents need not be considered. parties Of cause, enough say to the it is plaintiff, Purchasing Company, corporation, engaged (so Service is a its tes- timony shows), salary wage the business of buying earned accounts; defendant, Brennan, while Edward employ is or was in the Railway Company Missouri yard Pacific as a clerk. record, among facts undisputed
Certain are are paid wage day, $4.40 defendant was railroad company paid employees semi-monthly, its the amount earned from month, inclusive, first fifteenth being to the pay- due and twenty-fifth, able on the and the amount earned from the sixteenth month, inclusive, being’ to the end of payable due on the words, In following tenth of the month. other the railroad com- days pany period maturity reserved a of ten after each pay period. up account which to make roll for that April 25, 1927, plaintiff On defendant came to the office of com- charge get pany, and advised the one that he wanted to some money. purpose wage account, it was his to sell his Whether or to loan, trial, dispute plaintiff a matter of at obtain a contend- former, latter, least ing and defendant the at in so far as he rulings any under the permitted rate, to do so the court. At to, did, fill out prepared form, styled asked defendant *5 salary or account,” to sell an earned “application in which an representations regard employment in his certain to and made he outstanding indebtedness. plaintiff’s appears five case that defendant had worked
days 25, 1927, April 15, up pur- the April after and to date the earnings assignment, which his would sum ported have the computed day. him $22, the rate of Plaintiff offered $4.40 at (under trans- $20 account its version the the sum of for such action), following docu- accepted, whereupon which defendant ment, B, Exhibit was executed: in Plaintiff’s introduced evidence as in Dollars,
“Por cash $20.00 in sum and consideration acknowledged, hereby me, receipt day paid this of which is hand Co., Purchasing hereby sell, assign Service I do transfer and to the salary doing my account for City Louis, Mo., in St. business April, wages already month by during the or earned me R.R. by Missouri amounting $22.00, to me Pacific and and due Co. sale, assign-
“This is absolute and unconditional transfer and right, re- ment said account without further title or interest selling maining me, to the Service the said account said and mutually Purchasing shown and Co. for the cash consideration herein agreed upon, represent employed by I I was and warrant stated, year during month and above company said above-named em- Clerk, St., so capacity and while of Yard Gratiot salary wages above earned, me, I ployed is due to or and there stated. represent claims,
“I warrant off-sets, further and that there are no orders, outstanding demands, drafts, garnishments or attachments any way account; I affecting the said have heretofore sold, same, assigned transferred or but the said account authority just, unpaid, power is and and that I have full and true sell, assign transfer and the same. hereby Purchasing “The Service authorized em- said Co. I presents hereby powered, empower these do authorize and Co., Purchasing Hardeman, agent, G. said Service or C. attorney my name, my fact, sign any for me and and all acquittances vouchers, necessary checks, receipts proper payment of said to collect and signed order evidence be authority, pres- personally if I were extent and account to same attorney hereby my confirming all that said ent, ratifying I lawfully may do virtue hereof. in fact
“Name, Edward Brennan. “Address, 924 La Salle St. my Louis, set at I have hereunto hand “In Witness Whereof St. 25, 1927. Mo., April
“Witness: G. Hardeman.”
“C.
Ü6 of a testimony aware of the existence
Plaintiff’s was that it was dischargeable for offense making company rule of the railroad it consequently, did employee assignment, to make an and that it notify company occurred, had that in- riot of but the railroad what agent mak- stead, purpose for of plaintiff' was made ’s the defendant day, May 10, pay the On next which was ing collection for it. the $45, by pay roll of shown the defendant the sum collected month, April 16th to the end of the to be him for services from due part. assignment $22 of was purported and of which the part thereof, over $22, was turned admitted that such sum of or no by present action for defendant, course this plaintiff due to recovery was instituted. May 1927, de- by evidence that on It was further disclosed the voluntary petition bankruptcy; among filed a that fendant his wages assets, company; he listed the then due him railroad the proof bankruptcy $22 its claim court plaintiff filed of for the that by May 14, 1927; claim was on and that the disallowed the referee affecting plaintiff’s right without to main- prejudice, without recover this action. tain and urged is that the insistence on behalf defendant prime
The against him, rendering judgment favor court erred being, substance, theory plaintiff, the that under no view of the acquired to such plaintiff ease was shown have a title to the fund by assignment purported supported as to have covered an action specifically stated, More argues conversion. that for its defendant plaintiff successfully for to have action, maintained it nec- was essary .right in, for to shown property have that it had the to, right possession charged fund to have converted by defendant; right disclosed, and that no such was in that assignment partial one, concededly but a without made debtor, consent of the so as to have effectuated not a transfer ownership plaintiff assignee. absolute proceeds theory This upon contention April 25, 1927, on assignment executed, when the instrument of defendant’s two- v account, wage covering period weeks.’ from April April 16th 30th, inclusive, yet matured, had not so as payable to be due and company from the railroad under the terms of the em- contract of ployment; consequently, whole, any and that neither nor portion, of such account defendant assignable without his em- ployer’s consent, working until after the close hours on last might day wage period, when it first said be increas- ing, variable account had become stated sum due paid and to be day. following pay to defendant on controversy upon by There no about rule relied defendant, portion incapable assignment of a debt or claim is so as to be binding consent, the debtor without his reason being right rule that a pay debtor has the his indebtedness as an entirety, subject against be made his will to actions claimants, several part only each for a the whole demand. “We *7 finally concluded, however, have that the admitted facts of case bring it without the inhibition of that rule.
Ooncededly assigned plaintiff; of defendant to the whole the amount owing employer assignment to him from his the was at time the words, In performed made. other the fact that had theretofore he days wage day $4.40 his services for five at a scale a entitled him of ultimately company $22 to receive sum the of the railroad period; his the sum that labor over and that was identical assigned. debt, assignment he Thus was no partial there provided may employer his was to him at it be said that indebted made, premise assignment was the time the conditioned the performance given the over a units of of services number of obligation wage on em- given time at a creates such the scale ployer’s part pay an immediate asset to the to therefor as to be notwithstanding the terms of employee, the fact that under may employment particular of not be due contract sum employer until payable from the a later date. contract
Now no more about defendant’s of the record shows wage a engaged $4.40 scale of employment than was at that he semi-monthly, here- day, paid all of which has been and that he was semi-monthly Presumably, payments the fact of indicated. tofore company pro- with the part railroad compliance on the requires which all Statutes Section Revised vision of any State, employ which shall doing business in this corporations wages of servants, pay such laborers, mechanics, or other day, all, was the semi-monthly. after But employees as as often unit time constituted the semi-monthly period, which not be com- -wages employee was to total amount of due which the day, by the words, wages accumulated In other defendant’s puted. employment his implied his contract terms of though under thus the contract only semi-monthly; and paid was wage account made, defendant payment when one, in that was a severable days he had w'age number agreed scale for pay at the received a full of labor over performance to the worked, being held instead of any recovery of precedent to the semi-monthly period as a condition n wagestherefor. contrary, think we to the Notwithstanding arguments advanced all right acquisition property of a inescapable the conclusion the time fixed thing, regarded one wages as is to be in and to In another. payment for their employment by the contract his company, the railroad employment with defendant’s case whereupon he day’s work, performance of a contract called for the right in and to tangible, property possessed present, of a became paid not until though to be $4.40, the same the sum of even con- Having a severable subsequent employed under date. been service, he could have company’s tract, if he had abandoned the though short of actually performed, recovered for the services have com- discharged, he could semi-monthly period; if he had contract wages then earned at pelled employer pay his him his in the against employer rate, penalty provided with a statute died, could his administrator refusal; if he had event of compensation wages represented have collected the amount of actually worked, days agreed wage number of at the scale for the total Consequently, we con- listed as assets of the estate. same be owing whole of the amount assigned the clude that when defendant though it is true that assignment, him at the time possessed matured, yet semi-monthly he account had assignment; capable property or interest vested estate *8 assignments, against partial was no violation of the rule there would defense any regard whether such question without to the assignor; and assignee and in purely be available an action between concerned, trans- that, general there of law are so far as rules assigned, which ownership sum the plaintiff fer to of absolute notice upon due directly against debtor it could the have enforced to it. Nor assignment was the 2969, bad under Section Revised Statutes relating assignment the statute to the wages, pro- which assignments that all vides of wages, salaries, earnings or must be writing, with the correct assignment, date of the the amount assigned, and the name or party names the parties or owing the salaries,
wages, earnings and assigned; so further, and that all as- salaries, signments wages, earnings, and not earned at the time made, assignment the is shall null be and void. far as assignment question
So the form concerned, of the is dispute is no there but that it met tests the laid down in the first portion statute; of the suggested, but it has been that it was never- void, null theless wages assigned and in that the had not been the assignment “earned” at time the instrument of was executed. really argument This but a reiteration of that which has been proceeds considered, theory heretofore and that the word “earned,” appears statute, by as used the lawmakers synonymous payable,” as with “due and and that under the terms hiring, of a case, contract of such as is wages instant involved by though are not employee, earned even services have given by agreed rendered him over a number of units of time at wage scale, maturity wage until the of the account pay for check is to bo drawn.
119 We think this view of the statute is for untenable several reasons. In place, the first purpose it was not the Legislature, statute, provide against splitting enactment to of a account, but intent, rather it was police the exercise power, protect wage-earning to class, against might, in so far as it money unscrupulous lenders, improvidence. and the effects of its own Lutz, v. 254 law, Mo. 164 At S. W. common and [Heller 123.] prior statute, to the enactment of the it had that not been the rule only might wages assigned, assignment earned but be also that an prospective wages, existing or future be under an con- earned though employment, legal tract of right assignee, created a in the even eases), might contract (according to some as to time be indefinite assignment amount, and whether as or not the was intended sale, present security’ present for or or as mere future advance- undoubtedly Legislature ments. situation which set correct, by distinguishing earn- past about between and future ings, might assigned, providing that the former be latter not. judicial
So far as concerns the construction of the “earned,” word when used with reference wages, to the accumulation of it has been expressly “due,” differentiated has the term been held to wages to and refer describe the which the workman has done the work, whether same then or (C. were due not. A.), Talus C. [The Ling 670 ; Sing 248 Fed. Low Transportation (D. v. Standard C.), Co. 1017 ; Gladding (D. C.), re B. Fed. In H. Co. Fed. The Supreme Lutz, wages supra, spoke Court in Heller v. of earned present, right constituting tangible, property interest, distinguished incorporeal, intangible, be from the and invisible wages right subsequently per incident to be earned labor to be Legislature, formed. Furthermore the enactment of Section *9 4610, 1929, upon providing discharge Statutes Revised that of rate, unpaid wages employe, his then earned at the shall an contract distinction; payable, due and has made the same and become court, Quinn Sayman (Mo. App.), in v. T. M. 296 S. W. Products Co. 198, interpreted has so it. wages
Consequently
conclude that
are earned whenever services
we
by
employe
an
over a stated unit of time at
have
rendered
not;
wage scale,
payable
agreed
they
whether
are then due and
or
assignment statute,
Legislature,
that the
in
of the
and
the enactment
follows, therefore,
assignment
that the
the term in
sense.
used
that
theory of
question conveyed
plaintiff
in
such a title to
under
action,
support
to have warranted
present
transaction as to
and
entering
(if
was
free
judgment for it
the trial
otherwise
court in
(if
error);
discharge
bankruptcy
he
was
from
nor
defendant’s
defense,
discharged),
money
of his
of the
in view
retention
a
was
by him from his employer,
collected
if it
assignment
be found that the
sale,
which
negotiated
good faith,
constituted
bona-fide
was
[Covington
for a
consideration.
Rosenbusch,
and
valuable
v.
148 Ga.
78 ; Spurlock
97 S. E.
Garner,
App. 614,
v.
Ga.
Now it as that a defense is the record a whole evident by loan, rather upon relied defendant was that the transaction assignment outright wages; purported than an of earned sale given loan; reality loan bore usurious was secure the that .the given interest; pledge that the to secure the same rate was evidence, illegal. During taking plaintiff’s therefore invalid and testimony had been adduced to the effect that the transaction stand, was put upon he re- absolute sale. When defendant it, evidence, truth of plaintiff’s and was asked about the minded give plaintiff’s his version upon objection, permitted but was not he spoke assignment paper of transaction, upon ground for itself. entirely tending to show testimony proper, think this
We instrument plaintiff acquired such title reason had no question, The assignment support as to its action conversion. defendant, purpose varying for the evidence was offered not explaining instrument, purpose but for the terms of the written transaction; showing character of the true nature and general to show the parol which is adduced is a rule that evidence writing, does transaction, purpose or the real naiure of the contradiction infringe disallows the verbal the rule which L., 1259; p. sec. 10 R. C. instrument. J. written C. [22 involving it has personal property, this, Thus, in actions similar to sale, a bill of to show that permissible that it frequently been held *10 transfer evidencing upon face an writing its absolute or other merely themselves as a parties between the property, was intended mortgage, or consisted v. security. giving merely in the [Johson 477 ; Hughes, 73 v. Matthews, Mo. Ittner Huston, 58 ; v. 17 Mo. Wood 121 55, 65, 267 ; Poplin Brown, App. 255, 154 Mo. 55 S. W. v. 200 Mo. Keeler, King 411 ; App. 189 ; W. 13 Mo. v. Greaves 205 S. Newell v. 22 534 ; 51 Buff, App. & Mo. C. J. 1260.] plaintiff’s office, liad testified that when he he
Defendant went $20; charge plaintiff’s that he wanted told one to borrow sec retary, put rebuttal, dispute who was the stand did not statement; defendant, inception and if it be found that in the negotiate transaction, loan, did desire to courts will be inclined say Day, attempted that his defense was well-founded. v. [Cobb court, 278, 106 17 trouble is in this Mo. S. W. Bat the that the instance, by ruling itself, facts, foreclosed as the trier of the right defense, perfectly one, to consider valid loan, disguised, if the transaction was a no matter how it was given usury, pledge with tainted and the to secure same was there destroyed absolutely. 2844, 1929 ; Mulholland, S.R. Bell v. [Section 612 ; Surety 90 App. Casualty Co., Mo. Tolman v. Union & 90 Mo. 274 ; 109 App. Tolman, App. Henderson v. Mo. S. W. 76.] noted, judgment Accordingly, that for it follows the error ren- remanded; reversed, dered circuit court should be and the cause and the Commissioner so recommends.
PER foregoing opinion Beostnick, C., adopted CURIAM: The judgment opinion is, as the of the court. The of the circuit court ac- accordingly, reversed, Haid, J., remanded. P. and Becker and the case Nipper, JJ., concur. Appellant Benjamin F. Geisert, Chicago, The Rock Island v. Railway Corporation, Charles Company, Pacific Respondents; Becker, Ap District, Corporation, Labaddie River Protection Bottoms p Railway v. The ellant, Chicago, Rock Island Pacific Respondents. Becker, Company, Corporation, and Charles (2d) S. W. 954. Appeals. Opinion Court filed November 1931. St. Louis