Brown v. West

• Decision Date: 15 May 1926
• Docket Number: (No. 16841.)
• Citation: 133 S.E. 304,35 Ga.App. 444
• Parties: BROWN et al . v. WEST.
• Court: Georgia Court of Appeals

35 Ga.App. 444

133 S.E. 304

BROWN et al .

v.WEST.

(No. 16841.)

Court of Appeals of Georgia, Division No. 2.

May 15, 1926.

(Syllabus by Editorial Staff.)

Error from Superior Court, Fulton County; W. D. Ellis, Judge.

Suit by F. T. West against George Brown and another. Judgment for plaintiff, and defendants bring error. Affirmed.

This was a suit by F. T. West against George Brown and Nick Millas, for the foreclosure of a lien for the original sum of $732, later increased by an amendment, which lien was claimed on account of labor and material furnished in building five stores on Central avenue, Atlanta, Ga. On the trial the following transfer by the plaintiff was introduced in evidence:

"Georgia, Fulton County:

"Know all men by these presents that I, F. T. West [the plaintiff], for value received, do hereby transfer, sell, assign, and convey and deliver to Dr. W. M. Etheridge all my right, title and interest in and to a claim I hold against George Brown and Nick Mallas for $732.00, same being the balance on labor and material furnished in the building of five stores on Central avenue and East Fair street, in which a lien has been filed and recorded, same being No. 316564, Book Number 273, page 528, November 4, 1921, in which suit has been instituted to foreclose said lien, being number 50932, Fulton superior court. This assignment is made for the purpose of securing an indebted ness of $300.00 due by F. T. West to Dr. W. M. Etheridge. [Signed] F. T. West.'

The judge charged the Jury as follows:

"If you find that this plaintiff is entitled to recover then you would pass to the question of how much, and on the question of this assignment to this doctor the court instructs you that whatever verdict you find, if for the plaintiff, you should deduct from that verdict the amount due on this assignment from the amount which the plaintiff might be otherwise entitled to recover."

The verdict was: "We, the jury, find for the plaintiff in the sum—

                ---------------------------------------------------------
                |Ot $1,235.19 principal, and interest $282.94|$1,518 13 |
                |--------------------------------------------|----------|
                |Less $300.00 assignment and interest, $66.50|366 60    |
                |--------------------------------------------|----------|
                |                                            |$1,151 63"|
                ---------------------------------------------------------
                

The defendants moved for a new trial on general grounds and on the ground that the court erred in the foregoing charge. This motion was overruled, and the movants excepted.

Key, McClelland & McClelland, of Atlanta, for plaintiffs in error.

Scott, Hornbuckle & Moore, of Atlanta, for defendant in error.

Syllabus Opinion by the Court.

JENKINS, P. J. [1] 1. Where creditors make a full written assignment of their claim to a third person, although it be to secure a lesser indebtedness of theirs to the assignee, the assignment vests in the assignee the full legal title to the entire chose in action; and in such a case the assignee is vested with the right to maintain an action for the full amount of the chose in action, being charged with the duty of holding the excess, above the amount of the secured debt, as trustee for the assignors.

2. Where such an assignment of u chose in action is not made until after the assignor has filed suit on...