Bell Finance Co v. Johnson. *

• Decision Date: 11 April 1935
• Docket Number: Nos. 10608, 10737.,s. 10608, 10737.
• Citation: 180 Ga. 567,179 S.E. 703
• Parties: BELL FINANCE CO. v. JOHNSON. * HALL. v. BELL FINANCE CO.
• Court: Georgia Supreme Court

180 Ga. 567

179 S.E. 703

BELL FINANCE CO.

v.JOHNSON. ^*

HALL.

v.BELL FINANCE CO.

Nos. 10608, 10737.

Supreme Court of Georgia.

April 11, 1935.

Syllabus by Editorial Staff.

RUSSELL, C. J., dissenting.

Certified Questions from Court of Appeals.

Proceedings between the Bell Finance Company and G. E. Johnson, and between D. F. Hall and the Bell Finance Company. To review the judgments, the first-mimed party in each proceeding brought error to the Court of Appeals, which certifies questions.

Questions answered.

The Court of Appeals certified the following questions:

In case No. 10608: "Will an action at law for the wrongful conversion of money, brought by the assignee of a partial assignment of earned salary or wages made without the assent of the debtor or employer of the assignor, lie against the assignor thereof, where such assignor collects the salary or wages assigned and appropriates the same to his own use? In this connection, the Court of Appeals requests the Supreme Court to review the decision in Wilson v. Etheredge, 174 Ga. 386, 162 S. E. 707. See, also, Etheredge v. Wilson, 41 Ga. App. 432, 153 S. E. 230; Sampson v. Bibb Investment Co., 47 Ga. App. 649, 171 S. E. 221; Hubbard v. Bibb Brokerage Co., 44 Ga. App. 1, 160 S. E. 639; Holmes v. Bennett, 49 Ga. App. 860, 176 S. E. 836."

In case No. 10737: "1. Will an action at law lie in favor of an assignee of a partial assignment of earned salary or wages, made without the assent of the debtor or employer of the assignor, against such assignor, when the assignor collects the wages or salary so assigned and converts them to his own use?

"2. If the foregoing question is answered in the affirmative, is the right of action in favor of the assignee an action for conversion of such money so assigned, or is it an action for money had and received?

"3. Does the collection from the debtor by the assignor, who held the legal title to the money so long as it was in the debtor's hands, but who by his assignment conveyed the equitable title thereto to the assignee, ipso facto make him a trustee of the entire interest for the benefit of the assignee?

"4. In the event of the bankruptcy of the assignor before he has accounted to the assignee for such money so collected, is the claim of the assignee such a fiduciary claim as will not be affected by the discharge in bankruptcy of the assignor?"

In No. 10608:C. W. Killebrew and Isaac S. Peebles, Jr., both of Augusta, for plaintiff in error.

Paul T. Chance and Nathan Jolles, both of Augusta, for defendant in error.

In No. 10737:Thos. L. Hill, of Augusta, for plaintiff in error.

C. W. Killebrew and Isaac S. Peebles, Jr., both of Augusta, for defendant in error.

Syllabus Opinion by the Court.

ATKINSON, Justice.

1. A partial assignment of an amount owed to the assignor, as distinguished from an assignment of the entire debt, vests in the assignee an equitable interest in the entire fund. Fidelity & Deposit Co. v. Exchange Bank, 100 Ga. 619, 28 S. E. 393; Western & Atlantic Railroad Co. v. Union Investment Co., 128 Ga. 74, 57 S. E. 100; King Bros. & Co. v. Central of Georgia Railway Co., 135 Ga. 225, 69 S. E. 113, Ann. Cas. 1912A, 672.

2. If after an employee executes a partial assignment of wages owed to him by his employer to which the employer has not assented, such assignor without consent of the assignee collects the amount so assigned and converts the same to his own use, he commits a wrongful conversion (Covington v. Rosenbusch, 148 Ga. 459, 97 S. E. 78) for which he may be sued at law by the assignee. Civ. Code 1910, § 5406; Code 1933, § 37-901. See Fidelity & Deposit Co. v. Exchange Bank, holding that such partial assignment will support a statutory claim interposed to a garnishment proceeding in a court of law instituted after the assignment, seeking to subject the fund to a prior judgment obtained by a general creditor.

3. "Private duties may arise from statute or flow from relations created by contract, express or implied. The violation of any such specific duty, accompanied with damage, shall give a right of action." Civ. Code 1910, § 4406; Code 1933, § 105-104. "When a transaction partakes of the nature both of a tort and a contract, the party complainant may waive the one and rely solely upon the other." Civ. Code 1910, § 4407; Code 1933, § 105-105. The assignee under such circumstances has an option to sue the assignor for money had and received (Bates-Farley Savings Bank v. Dismukes, 107 Ga 212, 33 S. E. 175), or to sue him in tort for the conversion of the money assigned.

4. Where the assignor collects the money from his employer after his equitable assignment as indicated above, such collection will ipso facto make him a trustee of the entire...