Leahi v. Dugdale's Administratrix

Assignment — Notice.—The debtor, in an account assigned, is entitled to credits for all payments properly made before notice of the assignment; the date of the notice fixes the liability. (S. C. 27 Mo. 437.)

Appeal from St. Louis Circuit Court. This suit is the same as heretofore decided in this court, and-reported in 27 Mo. 487. Dugdale contracted with .the Olive-street Plank Road Company to build certain sections of the work. Dugdale after-wards by contract, under seal with M. O’Leary and J. B. Neenan, sub-let to them sections eighteen and nineteen, to be completed in conformity with his contract with the company. O’Leary & Neenan in January A. D. 1855, assigned their contract with Dugdale to plaintiffs. O’Leary was not present, nor was any testimony offered to show that he knew of it or acquiesced in it; defendant showed that, after its alleged execution, O’Leary, in ignorance of it, wrote to Dug-dale directing a particular debt to be paid. The work proceeded ; but was not completed in time pursuant to the contract, and a reclamation of damages was made by the company. The consideration of this recoupment was excluded from the jury, because subsequent to the notice to Dugdale of the assignment of the contract by O’Leary & Neenan to plaintiffs. At the trial the plaintiffs read in evidence the contract between Dugdale and the Plank Road Company — next that between Dugdale and O’Leary & Neenan. In support of the assignment by O’Leary & Neenan to them, plaintiffs called Wm. O. Jamison, who testified that lie had drawn up the assignment; that it was executed by J. B. Neenan, (the other partner not being present at the time,) and no authority was shown for Neenan to sign his co-partner O’Leary’s name. Plaintiffs thereupon read the assignment, dated January 19, 1855, to the jury. It was thus signed: “ by James B. Neenan [seal], Michael O’Leary [seal], James B. Neenan [seal].” Defendant objected to its being read upon the ground that there was no proof of its execution by O’Leary, but the objection was overruled. No other proof of notice to Dugdale of the assignment was given than by McCartney, one of plaintiffs’ witnesses. He recites a conversation wherein one of the plaintiffs called for the estimates, and Dugdale flatly refused to recognize them or any one but the original parties, and that if plaintiffs proceeded with the work, it would be at their peril. Plaintiffs offered proof of the quantity of work done, and of the payments made for it to Dugdale by the company. De-. fendant offered evidence of payments to different persons on debts of O’Leary & Neenan, many of them on garnishments issued on judgments against O’Leary & Neenan, some of these payments were before others after the assignment of the contract to plaintiffs. The plaintiffs objected to any evidence of payments made after the date of the assignment, which objection was sustained by the court; whereupon defendant excepted and withdrew all evidence of any payments subsequent to the date of the assignment.