American Oak Leather Co. v. Union Bank

• Decision Date: 12 June 1893
• Citation: 9 Utah 87,33 P. 246
• Court: Utah Supreme Court
• Parties: AMERICAN OAK LEATHER COMPANY, RESPONDENT, v. UNION BANK AND ANOTHER, APPELLANTS

33 P. 246

9 Utah 87

AMERICAN OAK LEATHER COMPANY, RESPONDENT, v. UNION BANK AND ANOTHER, APPELLANTS

Supreme Court of Utah

June 12, 1893

APPEAL from a judgment of the district court of the first district and from an order refusing a new trial, Hon. James A. Miner judge. The opinion states the facts.

Affirmed.

Mr Clesson S. Kinney, for the appellant.

As to the accounts the instrument referred to in the findings was an absolute transfer, because the accounts were choses in action, but as to the remaining personal property it was a chattel mortgage. The effect of the instrument is to be determined by the laws of Michigan. Culver v Benedict, 79 Mass. 7; Railway Co. v. Glenn, 28 Md. 287; Guillander v. Howell, 35 N.Y. 657; Moore v. Willet, 35 Barb. 663; Bacon v. Horn, (Penn.) 2 L. R. Ann. 355. Story's Conflict of Laws, Secs. 379, 383, 384.

This assignment was valid in Michigan as the decision in Bank v. Smith, 84 Mich. 364, 47 N.W. 502. Notice to the debtor was not necessary, before service of the writ of garnishment. Any notice pendente lite will be sufficient, if in time to be set up in discharge of the garnishment. Wade on Attachment, Sec. 437. Drake on Attachment, Secs. 527, 608; 8 Am. and Eng. Encyc. Law, 1180; Foster v. Sinkler, 4 Mass. 450; Dix v. Cobb, 4 Mass. 508; Blake v. Williams, 6 Pick. 286; Holmes v. Benson, 4 Johns. Ch. 460; Page v. Crossly, 24 Pick. 211; McGuire v. Pitts, 42 Iowa 535. No recording was necessary. Bacon v. Horn, 123 Pa. 452.

Messrs. Jones and Schroeder, for the respondent.

The instrument is a chattel mortgage and hence invalid in Utah Territory, because not executed in accordance with the laws of Utah Territory, because right to the property is not made absolute by non-performance, because a chose in action is not the subject of a chattel mortgage.

An assignment of property to secure a pre-existing debt does not give the assignee the equities of a purchaser for value. Lockwood v. Bates, 1 Del. Ch. 435, 12 Am. Dec. 121; Harris v. Horner, 1 D. and B. Eq. 455, 30 Am. Dec. 182. Nor does rule apply in favor of a non-resident concerning property in Utah not actually reduced to possession. Anthony v. Wood, 29 Hun, 239; Furnell v. Bush, 2 Hun, 202; Bank v. Fleming, 8 Bull, 309.

Instrument is void because grantor remains in possession with authority to replenish his stock. Robinson v. Elliot, 89 U.S. 513. This decision is the law of Utah and it is by the laws of this Territory that we must be governed, because a debt is located where the debtor resides. Owen v. Miller, 10 Ohio St. 136, 75 Am. Dec. 502; Chapman v. Robertson, 6 Paige Ch. 627, 31 Am. Dec. 254; Abraham v. Plestoro, 3 Wend. 539, 20 Am. Dec. 738; Hoyt v. Thompson, 5 N.Y. 320; Attorney General v. Bowen, 4 Mee. and W. 171. And lex situs governs when instrument is executed in a state other than that in which the property is situate. Green v. Van Buskirk, 7 Wall. 139; Ogden v. Saunders, 12 Wheat. 313; Ames Iron Works v. Warren, 79 Ind. 512, 40 Am. Rep. 258; Geo. T. Smith Purifier Co. v. McGroarty, 136 U.S. 349; Golden v. Cockrill, 1 Kan. 259; Denny v. Faulkner, 1 Kan. 89; Edgerly v. Bush, 81 N.Y. 199; Clark v. Tarbell, 56 N.H. 88; Hardaway v. Semmes, 38 Ala. 657; Guillan v. Howell, 35 N.Y. 657; Whitman v. Connor, 40 N.Y.S.Ct. 339; Runyan v. Groshen, 12 N.J. Eq. 86; Rice v. Curtis, 32 Vt. 460.

SMITH, J. BARTCH, J., and MINER, J., concurred.

OPINION

SMITH, J.

This was an action by the plaintiff against defendant to recover $ 513.70 on an account stated. An attachment was issued, and money due defendant from F. Platt & Co. was attached. Defendant made default. The appellants intervened without objection, and claimed the money due from Platt & Co., claiming that it had been assigned to them before the service of the attachment. Plaintiff answered, and denied the claims of the interveners. On the issue thus made up between plaintiff and the interveners a trial was had before the court. A jury being waived, findings of fact and conclusions of law were made, and judgment entered for plaintiff and against the defendant and interveners. Motion for a new trial on a statement of the case was made and overruled, and the interveners appeal from the judgment and order denying a new trial. The following errors are assigned:

First. That the court erred in making the eighteenth finding of fact, to the effect "that the plaintiff was at the time of the commencement of this action a creditor of defendant." The action against defendant was on a contract. It made default so far as the claim of the plaintiff is concerned, although it appeared in the action, and answered the petition in intervention. In this state of the case, the claim of plaintiff, being founded on a contract, was admitted, and did not require proof. While the finding may have been unnecessary, it is warranted by the admissions of the pleadings.

Second. That the court erred in the conclusion of law to the effect that the pretended assignment to the interveners of the debt of Platt & Co. was void, and that there was in law no assignment of the account to the interveners. The writing relied on as an assignment of this account is dated May 5, 1891, was made in Michigan, is made by defendant as party of the first part and the interveners as parties of the second part, and, so far as is material, is as follows:

"Witnesseth that the party of the first part, its representatives and assigns, for and in consideration of the sum of twenty-one thousand two hundred and ninety-nine dollars and forty-five cents to it in hand paid by said Union Bank, and the sum of five thousand dollars to it in hand paid by the said Alonzo Bennett, and for the purpose of securing the payment of said sums to each of said parties, and of any future sums in which it may at any time hereafter become indebted to each of the said second parties, does hereby grant, bargain, and sell unto the said parties of the second part and their representatives and assigns, and the representatives of each of them, all the following property, towit: The general stock of merchandise, saddlery hardware, gig and track saddles coach pads, bridle fronts, and housings, manufactured and in process of manufacture, all stock material for the same, including boxes, and all other goods, wares, and merchandise, property and fixtures, containing in the three-story brick building of the said first party, situate on the south side of West Main street, between Blackstone and Jackson streets, Jackson, Michigan; and also all other goods, chattels, merchandise, furniture, and fixtures which at any time hereafter may be purchased for or added to or used in connection with said stock or business, or commingled therewith; and the said first party does hereby agree to, and does hereby, transfer, set over, and assign and set aside to said second parties all the notes, bills, accounts, debts connected with the said business, due or to become due, now existing or that shall hereafter accrue or be acquired in the conduct of the business of said first party, and also all books of accounts, notes, bills, and other documents evidencing such obligations: provided, always, and these presents are made upon the express conditions, that if the said party of the first part shall pay or cause to be paid to each of the said second parties, its and his representatives...