Porte v. Chi. & N. W. Ry. Co.

• Decision Date: 22 February 1916
• Citation: 162 Wis. 446,156 N.W. 469
• Court: Wisconsin Supreme Court
• Parties: PORTE v. CHICAGO & N. W. RY. CO.

162 Wis. 446

156 N.W. 469

PORTE

v.CHICAGO & N. W. RY. CO.

Supreme Court of Wisconsin.

Feb. 22, 1916.

Appeal from Circuit Court, Brown County; Henry Graass, Judge.

Action by B. F. Porte against the Chicago & Northwestern Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

This is an action to recover wages earned by the plaintiff while in the employ of the defendant company as a brakeman.

The plaintiff, a married man having a family dependent upon him, was in the employ of the defendant company as a switchman at Chicago, Ill., until October 9, 1912. At this time he quit his employment with the company at Chicago and moved to Green Bay, Wis., on account of the ill health of his wife. On August 15, 1912, the plaintiff, while residing in Chicago, Ill., and while in the employ of the defendant, assigned to L. G. Cobb & Co. his wages for the ensuing year until August 31, 1913. This assignment was in writing signed by him, but not by his wife. The instrument also gave to Cobb & Co. power of attorney to sue, collect, and receipt for money due them under the assignment. The assignment reads as follows:

“For a valuable consideration to me in hand paid by L. G. Cobb & Co., a corporation, the receipt of which is hereby acknowledged, I do hereby sell, transfer, assign, and set over to the said L. G. Cobb & Co., a corporation, or its assigns, all wages and claim for wages or commission earned and to be earned, and all claims and demands due or to become due me from the Chicago & Northwestern Railway Company, their successors, heirs, or assigns, or any other firm, person, company, or corporation by whom I may hereafter be employed, or who may owe me money for any consideration whatsoever, up to and including the last day of August, 1913; and I hereby authorize and direct the party or parties named above, or any of them, to pay the said demand and claim and all thereof to the said L. G. Cobb & Co., a corporation, or its assigns.

I do hereby constitute and appoint the said L. G. Cobb & Co., a corporation, or its assigns, my attorneys in my name to take all legal measures which may be proper or necessary for the complete recovery and enjoyment of the claim or claims hereby assigned; and I hereby authorize and empower it to receive any money which may become due hereon and receipt for the same in my name, hereby ratifying any acts my said attorneys may take herein.

Witness my hand and seal this 15th day of August, 1912.

Barnem F. Porte. [Seal.]”

On October 24, 1912, upon plaintiff's application for employment as brakeman, and having passed the physical examination, he was employed by and commenced work for the defendant company as a brakeman at Green Bay, Wis. The defendant paid the plaintiff for services performed under this employment until December 1, 1912. On November 27, 1912, the defendant received notice of the assignment; and on December 6, 1912, the assignment was filed with the defendant. On January 27, 1913, L. G. Cobb & Co., the assignee, brought suit on the assignment against the defendant company in Chicago, Ill., and recovered judgment on March 21, 1913, for $116.05 of the amount due plaintiff for his December and January earnings. The plaintiff on February 3, 1913, commenced an action against the defendant company to recover these wages earned between December 1st and January 18th, amounting to $118.82. After two postponements the plaintiff took judgment by default. Defendant appealed the action to the circuit court for Brown county, where judgment was rendered for the plaintiff in the sum of $108, together with the costs and disbursements of the action. The plaintiff was not a party to the suit by L. G. Cobb & Co. against defendant in Chicago, Ill.; no service of summons having been made upon him. The plaintiff's attorney by letters dated February 13 and 17, 1913, notified the defendant, before the L. G. Cobb & Co. action was tried, that plaintiff claimed the assignment was void, and that the amount due him was exempt as wages earned in Wisconsin and that plaintiff claimed the right to recover the wages due him from defendant. From the above judgment, this appeal is taken.

Edward M. Smart, of Milwaukee, for appellant.

R. I. McCreery, of Green Bay, for respondent.

SIEBECKER, J. (after stating the facts as above).

[1] The defendant asserts that the trial court erred in holding that plaintiff was employed by defendant in October, 1912, and that he commenced work for defendant under this employment on October 24, 1912. The record clearly sustains the trial court on this point. The record shows that on October 14, 1912, the plaintiff applied to the defendant for employment as brakeman at Green Bay, Wis. This was an entirely different position from the one he held as switchman in Chicago. The transactions between the plaintiff and defendant on the subject show that both parties considered and treated it as a new contract of employment. From this it necessarily follows that plaintiff's employment as switchman in Chicago was terminated.

[2][3] Plaintiff's assignment of his earnings for future services is a valid assignment only of the earnings which became due under the employment existing at the time of the assignment. Wages to be earned under an employment not in existence are not assignable. The law recognizes no assignment of future earnings unless such earnings are based on an existing contract of employment. This doctrine is based on...