Singer & Co. v. Armstrong

77 Iowa 397 | Iowa | 1889

Given, C. J.

1. assignment creditors;11 aotrust1 and°aelivery of deed. I. The first question presented in the record is whether the assignment had been so accepted that it . took effect before the levying of the attachment. The testimony shows that before the execution of the aggignmen£ at Webster City the defendant telephoned his brother, L. E. Armstrong, at Fort Dodge, to come to Webster City; that, before leaving Fort Dodge, L. E. Armstrong saw the intervenor, and informed him that defendant anticipated trouble, and might have to appoint an assignee, and asked him if he would act if he was appointed, to which intervenor replied that he would, and to go ahead and do what was necessary and call on Mm when wanted; that witness so informed his brother, after arriving at Webster City, and the assignment was executed and delivered to Mr. Kamrar, to be filed, and was filed for record, the defendant and his brother having asked Kamrar to act for Schaupp. On the next day — July 21 — intervenor accepted the assignment in writing. These facts bring the case within the rule announced in American v. Frank, 62 Iowa, 202. There was no error, therefore, in overruling the plaintiff’s motion to strike from the petition of intervention the allegations that intervenor had consented to accept said trust orally, nor in admitting evidence offered to show such acceptance.

2. ._¡validity: evidence. II. The court admitted in evidence, over plaintiff’s objection, certain written contracts between L. C. and A. J. Armstrong for the sale of goods on commission, and evidence in relation to the merchandise so held, and as to the ownership of two certain certificates of deposit. The plaintiff claims that the assignment is void because the assignor withheld from the assignment said certificates of deposit. The certificates of deposit were not included in the assignment, but were claimed to be the property of L. E. Armstrong. There was no error in admitting this testimony as it went directly to the ownership of the property claimed to have been withheld from the assignment.

3. evidenoe III. The evidence of the oral acceptance of the assignment being admissible, there was no error in admitting the assignment itself in evidence.

IV. The assignment coming within the rule announced in Americam v. Frank, supra, and the testimony objected to having been properly admitted, we think the state of the testimony was such that this court should not reverse the conclusions of the trial court in finding the intervenor entitled to the attached property, and in rendering judgment therefor.

Affirmed.