Brewer v. Harris

Decision Date29 January 1938
Docket Number33691.
Citation147 Kan. 197,75 P.2d 287
PartiesBREWER v. HARRIS et al. (FIRST NAT. BANK OF MANHATTAN, KAN., et al., Interveners).
CourtKansas Supreme Court

Syllabus by the Court.

The alleged erroneous exclusion of testimony would not be reviewed by Supreme Court where excluded evidence was not produced at hearing of motion for new trial as required by statute. Gen.St.1935, 60-3004.

Assignments that court erred in rendering the judgment which was rendered, without specifying the error complained of, merely stated that judgment was wrong, and presented no question for review.

Errors arising on trial of cause would not be reviewed where the overruling of motion for new trial was not assigned as error.

A highway contractor's letter to State Highway Commission requesting that estimates due from the state on highway contracts performed by contractor for commission be mailed to contractor's bank was an order that was revocable at contractor's pleasure, and was not an "assignment," and the mailing of checks payable to contractor to the bank did not translate the order into an assignment.

An "assignment" is an expression of intention by assignor that his rights shall pass to assignee.

While no particular form or mode is necessary to effect a valid assignment, the intent to transfer and make over to another the property in question must be clearly established.

1. While no particular form or mode is necessary to effect a valid assignment, yet the intent to transfer and set over to another the property in question must be clearly established.

2. Where the ground of a motion for a new trail is the exclusion of evidence, the excluded evidence must be produced at the hearing of the motion for a new trial.

3. An assignment that the court erred in rendering the judgment which is rendered, and which does not specify the error complained of, merely states the judgment is wrong and presents no question for review by this court.

4. Where the action of the court in overruling a motion for a new trial is not specified as error, errors arising on the trial of the cause will not be reviewed.

Appeal from District Court, Riley County; Edgar C. Bennett, Judge.

Suit on a note by C. C. Brewer, doing business as the Brewer Motor Company, against William H. Harris and others, wherein a garnishment summons was issued to the State of Kansas, which asked that the First National Bank of Manhattan, Kansas, and another be interpleaded. From an adverse judgment, the named interpleader appeals.

Geo Clammer, of Manhattan, for appellant.

Charles Hughes, C. Harold Hughes, and Hal E. Harlan, all of Manhattan, and John Murphy, of Kansas City, Mo., for the appellees.

ALLEN Justice.

This case comes before this court on an appeal by the interpleader, First National Bank of Manhattan, Kan., in the suit of Brewer against Harris from a judgment rendered against the interpleader in the district court of Riley county, Kan.

This is a controversy between three claimants of a fund in the hands of the State Highway Commission, each claimant contending that he has the prior right to have said funds applied to the satisfaction of his claim. The fund in question consists of the final estimates due from the State of Kansas to one Wm H. Harris on certain road contracts performed by Harris for the State Highway Commission.

Suit was originally instituted by C. C. Brewer, doing business as the Brewer Motor Company at Manhattan, Kan., against Wm. H Harris for recovery upon a promissory note. After filing the petition and before judgment, a garnishment summons was issued to the State of Kansas to subject funds due Harris from the State Highway Commission in the amount of $3,122.10 to the payment of Brewer's claim. Thereafter the Auditor of State filed his answer admitting a contingent liability to Harris in the above amount, but stated that the First National Bank of Manhattan, Kan., and the Massachusetts Bonding and Insurance Company, each claimed some interest in the garnished fund, and asked that they be interpleaded in the garnishment action.

Thereafter judgment was rendered in favor of C. C. Brewer against Harris in the amount of $1,935.54, the interpleaders were duly served with summons and made parties defendant to the garnishment action, and the State of Kansas paid the sum of $3,122.10 into the office of the clerk of the district court of Riley county, Kan.

The issues framed by the pleadings and the contentions of counsel presented only the question of priority of claims between the various claimants to the garnished fund. Plaintiff Brewer claims priority to the fund by reason of his garnishment of the fund and his judgment against the defendant Harris. The interpleader First National Bank claims priority to the fund by reason of a purported assignment from defendant Harris to the proceeds of certain construction contracts by reason of which the State of Kansas was indebted to defendant Harris in the amount garnished. The interpleader Massachusetts Bonding & Insurance Company claimed a priority to the fund upon the theory that it was entitled to an equitable lien by reason of its position as surety for the contractor Harris, and its alleged liability for unpaid material and labor bills incurred in the performance of the contracts for road construction by Harris.

The First National Bank asserts that on or about the 30th of January, 1936, Wm. H. Harris, a contractor, contemplated placing his bids for certain road construction work with the State Highway Commission of Kansas, and later was awarded the contract for such construction. Harris applied to the bank for a line of credit to finance such construction work. The answer of the defendant bank states: "That on or about said January 30, 1936, he orally proposed to respondent that if respondent would advance the funds necessary to be paid by him upon said jobs for material and labor, he would cause the cheeks issued by the State Highway Commission in payment of his contract obligations, to be delivered by such commission to this respondent. This respondent in reliance on said proposal thereupon agreed to finance said defendant."

A statement from the State Highway Commission, attached to the affidavit of the garnishee, contains the following:

"You are further advised that under date of May 5th the Highway Commission received a letter from Wm. H. Harris asking that all estimates be mailed to the First National Bank of Manhattan, which letter was answered under date of May 20th. That copies of such correspondence is hereto attached marked Exhibits 'E' and 'F.' That the Highway Commission did not understand that such correspondence was in any wise intended as an assignment but merely as an address and that the answer of the Highway Commission dated May 20, 1936 is a form letter used to answer all similar requests and is in words identical with other letters written to banks and particularly letter dated March 30, 1936 concerning Wm. H. Harris and the First
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23 cases
  • Marteney v. United States
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • May 3, 1957
    ...effect a valid assignment, if the intent to transfer and make over to another certain property is clearly established. Brewer v. Harris, 147 Kan. 197, 201, 75 P.2d 287." See also Markham v. Waterman, 105 Kan. 93, 181 P. 621; 6 C. J.S. Assignments § ...
  • Ford v. Sewell
    • United States
    • Kansas Supreme Court
    • November 10, 1961
    ...trial is not specified as error, trial errors will not be reviewed. See, e. g., Gas Co. v. Dooley, 73 Kan. 758, 84 P. 719; Brewer v. Harris, 147 Kan. 197, 75 P.2d 287; Heniff v. Clausen, 154 Kan. 717, 121 P.2d 196; Palmer v. Helmer, 159 Kan. 647, 157 P.2d 531; Holmes v. Kalbach, 173 Kan. 73......
  • Hamilton v. Binger
    • United States
    • Kansas Supreme Court
    • January 25, 1947
    ...in rendering its judgment amounts to nothing more than a statement the judgment is wrong and does not specify any error. Brewer v. Harris, 147 Kan. 197, 75 P.2d 287; Biby v. City of Wichita, 151 Kan. 981, 982, 101 919; Heniff v. Clausen, 154 Kan. 717, 121 P.2d 196; Lambeth v. Bogart, 155 Ka......
  • Gale v. Fruehauf Trailer Co.
    • United States
    • Kansas Supreme Court
    • January 22, 1944
    ... ... new trial has not been assigned as error. Roper v ... Ferris, 48 Kan. 583, 29 P. 1146; Gas Co. v ... Dooley, 73 Kan. 758, 84 P. 719; Brewer v ... Harris, 147 Kan. 197, 75 P.2d 287; Heniff v ... Clausen, 154 Kan. 717, 121 P.2d 196 ... In view ... of the foregoing it is ... ...
  • Request a trial to view additional results

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