White v. Wiley

14 Ind. 496 | Ind. | 1860

Hanna, J.

J.— Wiley sued White before a justice, for failing to pay over money, upon demand, collected as a justice of the peace.

Answer—

That all moneys collected had been paid, &c.

Trial, judgment for plaintiff for 65 dollars, and the same result in the Common Pleas on appeal.

There is no question made as to parties.

The facts shown by the plaintiff are, substantially, that _ one Henderson deposited with White certain claims for collection, and took a receipt therefor, on the 22d of June, 1855. At sometime thereafter, not shown by the record, White collected 65 dollars on said claims. Henderson, by indorsement in writing, transferred the receipt of the justice to Wiley, the appellee, on the 14th of February, 1856, of which the justice had notice in February or March. Wiley demanded the 65 dollars on the 2d of April, 1856. Payment was refused. And by the defendant it was shown that in the spring of 1855 said Henderson held, as assignee of one Bedford, a note on Thomas for 80 dollars, and at that time, for a full consideration, assigned it to William White, who transferred it to James G. White. On the 22d of June, Henderson informed James C. White that the maker of the note was insolvent, and he would have to pay the same. In the fall of 1855, Henderson made some arrangement with the' maker of the note by which it was satisfied. The bill of exceptions further states that in the summer or fall of 1855, an arrangement was made by which William White was to receive of his father, out of the moneys collected on the claims put in his hands, as justice, as much of the proceeds as would pay him, William, for the horse sold by him to Henderson; that the defendant, in March, 1856, paid William the sum of 65 dollars on his claim, and William afterwards paid it over to James G. White.

Upon these facts, and the instructions given and those refused, the question arises whether the payment by the justice, to William White, is a discharge of his liability for the 65 dollars collected and thus paid.

It is insisted by White that the arrangement by which a sum was to be paid to William White was an equitable, parol assignment of that amount. By the other party this is denied; but it is urged that even if that is true, the record does not show any notice to the justice of that arrangement, prior to the notice given by the plaintiff of his rights.

The indorsement on the receipt amounted to no more than an equitable assignment of the claims or judgments, if they were even reduced to judgments. Burson v. Blair, 12 Ind. R. 371. And as the instrument was not assignable by virtue of the statute, 1 R. S. p. 378, no greater right was vested in the assignee than if the receipt had been delivered to him without such indorsement. Mewherter v. Price, 11 Ind. R. 202. The effect of the transaction was, therefore, a parol equitable assignment of the moneys then in the hands, or that might come into the hands, of the justice, upon the claims of which the receipt, which was delivered, was, as between certain parties, evidence. It differed from the arrangement before that time made, as to a part of said claims, only in the fact that in the one case the receipt was delivered, and in the other it was not, to the assignee. The delivery of the receipt was not absolutely essential to perfect the equitable assignment, especially when such assignment was only of a part of the sum of the claims enumerated in such receipt.

We are of opinion, therefore, that each of the arrangements made by Henderson, in regard to the money collected by White, was an equitable assignment of his interest therein, to the amount designated, and that, as such assignment to William White was prior in point of time to that of the plaintiff, he was, so far as that point is concerned, entitled to be first paid, unless something subsequently intervened to change those rights. We do not think that the fact that the subsequent assignee first notified the justice of the assignment, is of itself sufficient to change the rights of the parties. It is true, that if the prior assignee had failed to bring his rights to the knowledge of the justice, before the payment of the money to the last assignee, he might, by his neglect, have rendered those rights of no avail. The position which the justice, as a public officer, occupies, was one of indifference as between the parties. His assent to the assignment was not requisite to make it valid in equity. His official duty was discharged when he had paid the sum for which he was accountable, to the person having the highest legal or equitable right to receive it. This he was to determine when the time for payment arrived. We think, so far as the record shows, he determined the question correctly in this case.

I Perry and 0. P. Morton, for the appellant. W. A. Bichle, for the appellee.' Per Owriam.

The judgment is reversed with costs. Cause remanded, &c.