Clough v. Giles

An assignment by a written order of a debt to become due the defendant on the completion of a certain job of work, followed by a promise made by the one for whom the work was done to the assignee, after the job was finished, to pay him the amount due, effects a novation, and the debt cannot, after that, be held by trustee process as the right or credit of the defendant.

Appeal, from the police court of Concord. Issue between the plaintiff and the claimant. Facts found by the court. Prior to the service of the writ on the trustees, the defendant had been at work for them under a contract to do a piece of grading for $50. No time was limited in which the grading was to be completed, but it was done at the time the writ was served. After Giles had worked five days, he made an order or assignment for the $50, as follows: “West Concord, N. H., June 15, 1885. “ Mr. Hun ton & Anderson: “Please pay E. S. Nutter fifty dollars for grading. John B. Giles.” This order was presented for acceptance June 15, and Hunton & Anderson dated it ahead to June 25, so as not to be obliged to pay it until the work was finished, and then accepted it in writing. June 25 Giles had worked fifteen days, and after that he worked five days more before finishing the work, making in all twenty days. The order was given upon good consideration, but was not recorded in the city clerk’s office, as provided by Gen. Laws, c. 249, s. 48. After the work was completed, and before the service of the trustee process, Hunton & Anderson, in reply to a demand by Nutter, said they would pay the amount of the order to him. It is claimed that there was a verbal acceptance of this assignment after the money was due and before the service of the writ, which made the assignment good as. against everybody. But it was not an acceptance; it was merely a recognition of the written acceptance, and might be competent evidence, as an admission, to prove the written acceptance. Wells v. Brigham, 6 Cush. 6. It did not amount to a new contract of acceptance, for there was no new consideration. As establishing a legal right, it was unnecessary and of no effect. The title to this fund assigned passed as between the parties to the contract when the assignment was originally accepted. Knowlton v. Gooley, 102 Mass. 233; Mansard v. Batey, 114 Mass. 408.