Bartlett v. Wilbur

• Decision Date: 31 March 1880
• Citation: 53 Md. 485
• Parties: DAVID L. BARTLETT and Horace W. Robbins, Garnishees of the Illuminated Tile Company v. JAMES M. WILBUR.
• Court: Maryland Court of Appeals

53 Md. 485

DAVID L. BARTLETT and Horace W. Robbins, Garnishees of the Illuminated Tile Company v. JAMES M. WILBUR.

Court of Appeals of Maryland

March 31, 1880

Appeal from the Superior Court of Baltimore City.

The case is stated in the opinion of the court.

First Exception.--At the trial the plaintiff to sustain the issues on his part, gave in evidence an agreement between him and the garnishees which is sufficiently stated in the opinion also a certificate of incorporation of the Illuminated Tile Company, and the corporation laws of the State of New York from 2 Rev. Stat. 500, sec. 19. The plaintiff then produced the plaintiff himself as a witness, who testified that he was the person with whom the contract given in evidence was made that he executed the entire work as contemplated in the contract; that he had been paid seven or eight thousand dollars in different payments while the work was progressing that he had made an assignment of the contract to the Illuminated Tile Company, which he had in his possession, but could not find it, although he had made search for it; that he had done extra work in replacing two plates on Broadway and three plates on the roof, at the price of $300.00; that he had furnished a drill at $35.00, to the agent of Bartlett Robbins & Co.; that he had what states to be a copy of the original assignment. The plaintiff then offered to give said paper in evidence, which is as follows:

"For value received, I hereby sell, assign, transfer and set over to 'The Illuminated Tile Company,' of the City of New York, State of New York, the foregoing contract, and all my right, title and interest in and to the same, together with all moneys due or to grow due thereon, with the interest, and all benefits and advantages in any manner arising therefrom. In witness, I hereunto set my hand and seal, this 18th day of February, 1875.

James M. Wilbur." [+]

The garnishees objected; the court (Dobbin, J.,) overruled the objection and admitted the paper in evidence; to which ruling the garnishees excepted.

Second Exception.--The paper was then read in evidence to the jury, the plaintiff then put in evidence an answer of the garnishees filed on the 29th of February, 1876, to interrogatories in an attachment suit of the New York Belting and Packing Co. v. James M. Wilbur, instituted on the 29th of January, 1876. The answer is as follows:

To the first of said interrogatories these respondents say, that on or about the 11th of August, 1874, they, contracted and agreed with James M. Wilbur, that they would purchase and take from him, and that he would furnish and sell to them, "all the illuminated tiling required for the United States Post Office and Court House, then being built at the City of New York," according to the specifications and at the prices set forth in said agreement; a copy of which is hereto annexed; that after the making of said agreement, the said James M. Wilbur entered upon the discharge of the obligations assumed by him therein, and for a considerable time, either in his own name or under the name of the Wilbur Manufacturing Company, furnished portions of the tiling specified in said agreement; that in February, 1875, as these respondents are informed, the said James M. Wilbur executed an assignment of all his rights and interests under said agreement, to The Illuminated Tile Company, and that in April, 1875, there was served upon these respondents a paper, which purported and was certified to be a copy of said assignment, together with a notice signed by "W. J. Nichols, President of the Illuminated Tile Company, and L. M. Northrop, Secretary," notifying these respondents that "all payments due or to grow due on said contract, must be made to the said company." That said copy of assignment so served on these respondents, was in the words following (this copy is already set forth.)

That these respondents do not know the legal force or effect of said assignment, or the legal relation or connection, if any, between said James M. Wilbur and said Illuminated Tile Company, but said tiling contracted for in said agreement, continued to be furnished until the same was completed. That the account for said tiling and work furnished and done, under said contract or agreement with said Wilbur, is unadjusted, and the precise amount thereof these respondents do not know, (but they believe it will amount to between $32,000 and $33,000,) and that prior to said assignment they had paid to or for said Wilbur, on account thereof, the sum of about $9000.00, leaving, as they believe, a balance due, or to become due, to whomsoever may be lawfully entitled to receive the same, of between $23,000 and $24,000, but that the said tiling and work specified and contemplated by said agreement, has not yet been approved and accepted by the superintendent, assistant superintendent, and supervising architect of the said building, and is not properly due or payable until such approval and acceptance, but upon such approval and acceptance, the said sum of between $23,000 and $24,000, growing out of said contract and assignment, will be due and payable to whomsoever the court shall say is lawfully entitled to receive the same.

To which the garnishees objected, but the court overruled the objection and admitted the answer, as evidence of their notice of an assignment which supplemented the testimony of the plaintiff, and said to the jury that the answer was competent to bind Bartlett and Robbins to the extent to which they declared their knowledge of it. The garnishees excepted to this action of the court.

Third Exception.--The plaintiff then gave further evidence; and afterwards he himself testified that he held 997 shares of 1000 shares of the Illuminated Tile Company, and was the president thereof. On cross-examination the plaintiff stated, that the 997 shares were issued to him in February, March or April, 1875, and had never been assigned by him to any one. He was then asked how he paid for the stock, but objected to the question. The garnishees stated that the question was asked because they proposed to prove that the corporation was insolvent, and a receiver thereof had been appointed as of an insolvent corporation, and that there was no debt due to the plaintiff, as alleged in the affidavit accompanying the warrant for attachment in this case, by the Illuminated Tile Company, at the time when it fraudulently confessed judgment in the case, and that there was no debt due by the garnishees to the Illuminated Tile Company. But the court sustained the objection, and refused to allow the question to be asked of the witness; to which ruling the garnishees excepted.

Fourth Exception.--And then the plaintiff himself further testified, and produced other evidence in his behalf. The garnishees to sustain the issues on their part produced several witnesses, and then offered in evidence an affidavit of James M. Wilbur as follows:

I am the defendant in this action; I reside at 51 West 9th street, New York City: I am a general mechanic, have no place of business of my own; I work for Mr. D. W. Bain; he is an attorney; he carries on the shop at 114 Centre street; I have been working there four or five months; I never owned any of the property there; Mr. Bain is the sole owner of it; I think it was September or October that I first went there; there is no price agreed upon for my compensation; I am paid by Bain; he pays me as he can spare the money; there is no price set; he gives me only as much as I need to live on; it is about $100 a month; Bain is working for the Government; doing work on the New York Post Office; making skylights and vault covers; Bain has a sub-contract; the contract was made by me and assigned to Bain; I think it was made in August with Bartlett, Robbins and Company, and assigned to Bain during the same month; I received my present position in consideration of the assignment; I assigned the patents to Bain when I assigned the contract to him; I owed a great deal at the time I made these assignments to Bain, probably $1000 or $1500; there are two or three judgments against me; there are no debts due or that I expect to get; I was not in any particular business before that; I spent the last winter in Washington; I was working on the contracts before Bain took hold of them; I had my work done at St. John L. McVey's; I also owe $1300 more than I have mentioned; I have no interest whatever now in the contract or patents.

J. M. Wilbur.

Subscribed and sworn to before me, Feby. 9, 1875.

Michael C. Gross,

Justice, etc.

The plaintiff objected; the court admitted the affidavit, but only as evidence to contradict the witness. The garnishees excepted to this ruling of the court, thus restricting the purpose for which the affidavit might be used.

Fifth Exception.--The garnishees then offered to prove, that more than one-third of the work, under the contract, was done prior to the assignment by James M. Wilbur to the Illuminated Tile Company; but the court, on the objection of the plaintiff, refused to admit the evidence; the garnishees excepted.

Sixth Exception.--The garnishees then offered ten prayers, of which it is necessary to set out only the following:

5. That although the jury find that James M. Wilbur executed the assignment to the Illuminated Tile Company, of which the paper-writing given in evidence in this cause is a copy, yet if they shall further find from all the evidence in this cause that the said James M. Wilbur, in August, 1874 assigned the contract with Bartlett, Robbins & Co., given in evidence in this cause, to D. W. Bain, then the plaintiff is only entitled to recover for the materials furnished and work done after the execution of the first mentioned assignment, after deducting...