Mich. Chandelier Co. v. Morse

Citation297 Mich. 41,297 N.W. 64
Decision Date11 March 1941
Docket NumberNo. 39.,39.
PartiesMICHIGAN CHANDELIER CO. v. MORSE et al.
CourtSupreme Court of Michigan

OPINION TEXT STARTS HERE

Action by the Michigan Chandelier Company against Earl C. Morse, individually and doing business as E. C. Morse & Co., in which a garnishee summons was issued and served on Floyd J. Skidmore, individually, and such defendant and another, co-partners doing business as F. J. Skidmore & Son, and Edwin R. Crosby, doing business as the Advance Electric Supply Company, was interpleaded as a defendant. Judgment for plaintiff, and interpleaded defendant appeals.

Affirmed.Appeal from Circuit Court, Calhoun County; Blaine W. Hatch, judge.

Argued before the Entire Bench.

Van Benschoten & Van Benschoten, of Flint, for appellant.

Marvin & Neller, of Battle Creek, for appellee.

BOYLES, Justice.

The issue in this case arises out of a garnishee proceeding between the plaintiff and Edwin R. Crosby, doing business as Advance Electric Supply Company, as an interpleaded defendant.

Plaintiff started suit against Earl C. Morse, individually, and doing business as E. C. Morse & Company, and at the same time caused a garnishee summons to be issued and served upon Floyd J. Skidmore, individually, and Floyd J. Skidmore and Stanley J. Skidmore, copartners, doing business as F. J. Skidmore & Son, as garnishee defendants. The principal defendant did not deny the debt, and judgment was ultimately entered against Earl C. Morse in the principal suit.

The garnishee suit against the Skidmore concern proceeded through the several stages of interrogatories, second garnishee summons and answer, and issue joined. In this suit, the Skidmore concern, as garnishee defendant, finally disclosed the following situation: The Skidmore concern had a general contract to erect a Kroger store building and had contracted with E. C. Morse & Company for the latter to do the electrical work on this building; subsequent to making this contract and at about the time Morse actually began work, and before the garnishee summons was served, the Skidmore concern had accepted an assignment of all money due Morse on the Kroger store job in favor of Edwin R. Crosby, doing business as the Advance Electric Supply Company. This assignment was as follows:

‘486 W. Michigan Ave.,

‘Battle Creek, Michigan.

August 12, 1939.

‘F. J. Skidmore & Sons,

‘52 Capitol Avenue, S.W.,

‘Battle Creek, Michigan.

‘Gentlemen:

‘For value received, we, E. C. Morse & Company, do hereby assign to the Advance Electric Supply Company, 1102 N. Saginaw Street, Flint, Michigan, any and all money due us on the Kroger store job covered by your job order No. 409 (this being the building owned by Glen Cross).

‘E. C. Morse & Company.

E. C. Morse.

(Earl C. Morse.)

‘Accepted as above:

‘F. J. Skidmore & Son,

‘By F. J. Skidmore. (Sgd.)

It was shown in the garnishee proceedings that the Skidmore concern owed Morse practically nothing at the time the assignment was executed and accepted; but that the Skidmore concern, when the final garnishee summons was served, owed either Morse or Edwin R. Crosby, doing business as the Advance Electric Supply Company, $725.91, but that this money would not be due until the job was completed. Edwin R. Crosby, doing business as the Advance Electric Supply Company, was thereupon interpleaded as a defendant; the Skidmore concern paid the money into court and was released from further liability. The issue in the case now stands between the plaintiff and Edwin R. Crosby, doing business as the Advance Electric Supply Company. Issue was joined between them in the trial court and came on for hearing. The court below found that the plaintiff was entitled to the money, and the Advance Electric Supply Company appeals.

The sole question before us is, What is the legal effect of the assignment? Plaintiff claims this assignment operates only to assign those moneys, if any, that were due and owing from the Skidmore concern to Morse at the time the assignment from Morse to the Advance Electric Supply Company was executed and accepted by the Skidmore concern. The Advance Electric Supply Company claims that this assignment is ambiguous and open to construction, and should be construed to mean not only the money due and owing at the time of its execution, but also to include all money to become due and owing thereafter from the Skidmore concern to Morse on the Kroger store job. If this contention is upheld, the money deposited in court belongs to Crosby, doing business as the Advance Electric Supply Company, the interpleaded defendant and appellant.

The issue narrows down to whether the assignment, dated August 12, 1939, of ‘any and all money due us on the Kroger store job’ is limited to ‘money now due,’ or does it mean ‘any and all money due us or to become due us?’ The precise question has not been before this court.

The assignment in question was prepared by the agent of defendant Crosby. If it can be said that it is susceptible of two constructions by reason of doubt or uncertainty, the assignment is to be construed most strictly against the interpleaded defendant in whose behalf it was prepared. It is an elementary rule of construction that, in case of doubt, the instrument is to be strictly construed against the party by whose agent it was drafted. 6 C.J.S., Assignments § 83, p. 1138; 17 C.J.S. Contracts, § 324, p. 751; Marks-Fiske-Zeiger Co. v. American Bushings Corporation, 250 Mich. 583, 230 N.W. 919;Olsen v. Fry, 234 Mich. 233, 207 N.W. 803. A contract is to be construed, as to its imperfections and ambiguities, most strongly against the agents who drew it and are responsible therefor. Hanley v. Porter, 238 Mich. 617, 214 N.W. 179.

‘Due’ means owed or owing to. The word ‘due’ is often used to signify the present existence of a debt, although to be paid thereafter. An affidavit annexed to a chattel mortgage stating that a certain sum was ‘due’ is not defective, the money being owed at the time although payable in the future. Metropolitan Store & Saloon Fixture Co. v. Albrecht, 70 N.J.L. 149, 56 A. 237. The word ‘due,’ in its larger sense, is often used to cover liabilities matured or unmatured, or as importing an existing obligation, whether the time of payment has arrived or not. Pope v. Matthews, 125 Ga. 341, 54 S.E. 152, citing People v. Vail, 6 Abb.N.C., N.Y., 206; United States v. State Bank of North Carolina, 6 Pet., 29, 31 U.S. 29, 8 L.Ed. 308;Sand-Blast File-Sharpening Co. v. Parsons, 54 Conn. 310, 7 A. 716;Scudder v. Scudder and Coryell, 10 N.J.L. 340, 341. The word ‘due’ is defined as owed, owing, owing and unpaid, remaining unpaid, an indebtedness. Sather Banking Co. v. Briggs Co., 138 Cal. 724, 72 P. 352;Crocker-Woolworth Nat. Bank of San Francisco v. Carle, 133 Cal. 409, 65 P. 951. The term ‘due’ signifies a debt or a state of indebtedness. It does not include contingencies which may ripen into an absolute indebtedness upon the future performance of contract...

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