Johnson County v. Bryson

1. Equitable Assignment, What is — Being Verbal Does not Invalidate it. — It is a rule, in equity, that anything which shows an intention to assign on the one side, and from which an assent to receive may be inferred on the other, will operate as an assignment, if sustained by a sufficient consideration. Being verbal does not invalidate it. The fact that the subject-matter of the assignment was not in existence at the time of the contract will not defeat the assignment. Courts of equity will support an assignment of things which have no present, actual, or potential existence, but rest in mere possibility. Not, indeed, as a present, positive transfer, operative in praesenti, for that can only be of a thing in esse. 2 Story’s Eq. Jur., sect. 1040. '.2.--Assignment oe Portion oe Debt as Between Assignee and Debtor, and as Between Interpleaders — Case Adjudged. The law, in this state, as between an assignee and the debtor, in the case of an assignment of only a portion of the debt, is that it cannot be enforced. But the contest here is between the inter-pleaders, each contending to be the real assignee. The debtor here is not making the objection, and the right to object to splitting a single debt into many is one which the debtor may waive. Fourth Nat. Bank v. Noonan, 88 Mo. 372. ■3. Jurisdiction — Construction of Section 12, Article 6, Constitution of Missouri — Case Adjudged. — The county of Johnson is not a real party to this contest between the interpleaders. It only asked that they litigate their right to the money claimed by each. This case is not,under the inhibition of section 12, article 6, of the constitution of this state, and this court has jurisdiction of the cause.

Error to Johnson Circuit Court, How. Noah M. Givan, Judge. The case and facts are stated in the opinion of the court. I. The agreement between Keene and Guihen was an equitable assignment, pro tanto, of the proceeds of the contract between Keene and the county, as the-material furnished amounted to. In order to establish it, it was not necessary that it should have been in express terms ; nor in writing. Smith v. Sterritt, 24 Mo. 260; 2 Story’s Eq. Jur., sect. 1047; Dillon v. Barnard, 1 Holmes (U. S. Circt. Ct.) 386; In re Strand Music Hall Co., 3 De Gex, J. & S. 147; Williams v. Ingersoll, 89 N. T. 508; Christmas v. Russell, 14 Wall. (U. S.) 59; BroJcaw v. Brokaw’s Mx?r, 3 Cent. Bep. 365. After the contract had been performed by Keene, the assignment became operative and vested in Guihen, to-the extent of the debt due him under his contract with Guihen. Wright v. Bircher, 72 Mo. 179; Rutherford v. Steward, 79 Mo. 216; Frank v. Playier, 73 Mo. 672. II. Future wages, to be earned under a present contract imparting to them a potential existence, may be assigned, although the contract may be indefinite, both as to the time of performance and the amount. Wade v. Bessy, 24 Am. Law Beg. 139; 2 Story’s Eq. Jur., sect. 1040. III. But conceding that a suit could not be maintained in equity, even on an assignment of part of a debt, without the consent of the debtor, no such obstacle presents itself in this case ;• for the debtor not only makes no objection, but asks that the rights of the respective assignees be determined, thereby consenting to pay to whomsoever it may in equity belong. James %. City of Newton, 2 N. E. Rep. 820; s. c., 23 Cent. Law Jour. 489, and citations; Supt. Pub. Schools v. Heath, 15 N. J. Eq. 22; Fourth Nat. Bank v. Noonan, 14 Mo. App. 243 ; s. c., 88 Mo. 372. IT. Prior to the assignment to Bryson by Keene, G-nihen bad notified the county, through its agent, the county court, while in open session, of his rights to the sum of $110.50 of the fund ; again, at their next meeting, he notified them in writing, and it does not appear when, if ever, Bryson notified the county of the assignment to him. The equity even of a subsequent assignee of choses in action, who first gives notice to the debtor, is superior to that of a prior assignee. A fortiori of a prior assignment. Fell v. McManus, 1 Cent. Rep. (N. Y.) 678; Murdock v. Finney, 21 Mo. 138; 8 Neb. 214; 13 Minn. 165; 2 Story’s Eq. Jur., sects. 1047-1057. Where there is no notice given by either of the assignees then the rule, qui prior est in tempore potior in jure, prevails. Mu/rdock v. Finney, supra. Y. The doctrine contended for in this case does not in the least conflict with the rule laid down in 63 Mo. 410 ; 73 Mo. 22 ; 76 Mo. 488 ; holding that there cannot be an assignment of part of a demand without the consent of the debtor; for the debtor, by interpleader, has consented to the assignment. Beardslee r>. Morgner, 4 Mo. App. 139 ; Fourth Nat. Bank «. Noonan, 14 Mo/ App. 243 ; s. 0., 88 Mo. 372. VI. Ever since the revision of the statutes in 1865, which went into effect August, 1866, it has not been necessary to verify pleadings, whether in law or equity, except in the cases therein enumerated. (a) But if such verifications had been required, it was no part of the pleading, and where by statute a pleading is required to be verified by affidavit, and is not so verified, and the opposite party accepts it without objection on that account, and takes issue oi law or fact upon it, the objection will be considered as waived. Schwartz r. Oppold, 74 N. Y. 307; Gilmore v. Hempstead, How. Prac. 153; Dawson v. Vaughan, 42 Ind. 395; Pudney v. Biorlchart, 62 Ind. 179; Butler v. Church, 14 Bush (Ky.) 540; Hughes v. Peeler, 18 la. 142; Harris v. Ray, 15 Ben. Monroe (Ky.) 630 ; Gilkeson v. Knight, 71 Mo. 403; 8 Neb. 214; 13 Minn. 165. It is too late to raise the objection for the first time in the appellate court. Payne v. Flournoy, 20 Ark. 500. I. This court has no jurisdiction to grant the writ of error, where the county is a party to the action, under section 12, article. 6, of the constitution of Missouri, as amended in 1884. II. There is no evidence tending to show that Keene made any legal or equitable assignment to Guihen of any claim or any part of any claim that he had, or might have, against the county, {a) According to Guillen’s statement, .the only conversation with Keene respecting the manner of payment was before the county owed Keene anything upon his contract, and before Keene had finally contracted with Guihen to furnish the material, and before Guihen had any claim or right against Keene for any sum whatever, consequently before there was”anything in existence to assign, and before there was any debt or liability to be secured or paid by an assignment. (5) The only proof offered was that there was an oral promise made by Keene to Guihen, that he could get his money from the county in the event of his furnishing the material, and the language used does not purport to be the assignment of any right that Keene had or might have against the county. (c) Guihen does not claim that he has an adjusted and liquidated sum due him from Keene, nor does he set forth any items of account in his pleadings or evidence so as to enable the court to fix the proper amount, if any, due him from Keene, nor does he give a statement of the quantity of rock furnished, or whether the same was .accepted by Keene, nor does he set forth a contract with Keene for the kind of material he was to use, or allege or claim that what he did furnish was in accordance with his contract, nor state any fact upon which the trial court could adjudicate upon his said claim, and any attempted assignment of an undetermined and undeterminable balance or amount could not have been allowed by the trial court, {d) In view of the fact that no settlement appears to have been made between Keene and Gruihen, or the amount of Gí-uihen’s claim in any manner determined, Keene became a necessary party to this action for a final adjudication thereof. Fulkerson v. Davenport, 70 Mo. 541. III. The interpleader, Gruihen, has no standing in ■court for the reason that he did not verify his interplea, as required by the equity practice and the laws of this state. IY. The amount that the county owed Keene was an undetermined and unliquidated sum at the time of the pretended transfer to Gruihen, and said Gruihen’s claim for materials was, at the time, undetermined and unliquidated, and no assignment of Keene’s claim could have been made by him. Burnett v. Crandall, 63 Mo. 410; Love v. Fairfield, 13 Mo. 300. Y. Gruihen claims a lien on the fund owed by the county to Keene for the materials furnished for the abutments, and it is well settled in this state that he could have no lien on public works for material or labor and had not sought for any lien under the statute; and this fund was not even subject to garnishment, much less a lien. YI. There was no legal notice upon the county court that Gruihen claimed any sum for the materials furnished, and the court made no record of such claim until long after Bryson became the sole owner, for full value, of the whole amount due Keene, as certified to by the road and bridge commissioner, as due the said Keene, and that said Bryson had no notice of any claim of Guihen until after he had purchased the account from Keene. VII. The trial court had all the evidence and the witnesses before it, and on a full deliberation found in favor of Bryson and against appellant Guihen. It is now a well-established rule in all the appellate courts of this state, that where a trial court has made a finding of facts, the appellate court will not disturb the finding, unless the trial court has committed a manifest error, either in the finding of the facts or in the theory of the trial of the case. Hodges v. Black, 76 Mo. 537; Sharpe v. McPike, 62 Mo. 300; Snell v. Harrison, 83 Mo. 651. And Guihen has not pointed out in his special assignment of errors any reason why the finding of the court trying the case should be interfered with in this court. VIII. The record shows there is a,n appeal undisposed of in this cause in this court, (a) If the appeal is pending, then this writ of error should be dismissed, and the record shows that to be the status of the case. (5) If this court takes judicial cognizance that said appeal has been before this court, and was submitted for final adjudication to the court, and was, after a hearing hereof, dismissed, then said action of this court was a final disposition of said cause, and this writ of error will not lie. Section 3776, Revised Statutes, as amended at p. 218, Session Acts, 1885, authorizes this court to render only the following form of judgments: “To award a new trial; to reverse or affirm the decision of the circuit court, or give such judgment as such court ought to have given, as shall seem agreeable to law.” After final submission, the only authority this court has is to enter one of the above forms of judgment; and to dismiss an appeal is to affirm the judgment of the lower court.