Chicago, B. & Q.R. Co. v. Provolt

• Decision Date: 03 February 1908
• Parties: CHICAGO, B. & Q. R. CO. v. PROVOLT et al.
• Court: Colorado Supreme Court

93 P. 1126

42 Colo. 103

CHICAGO, B. & Q. R. CO. v. PROVOLT et al.

Supreme Court of Colorado

February 3, 1908

Appeal from District Court, City and County of Denver; F. T Johnson, Judge.

Action by T. S. Provolt and another, copartners as the Employés'Credit Company, against the Chicago, Burlington & Quincy Railroad Company. Judgment for plaintiffs, and defendant appeals. Reversed.

Vaile & Waterman, E. N. Clark, W. W. Field, and Henry McAllister, Jr., for appellant.

C. K Phillipps, for appellees.

MAXWELL, J.

Appellees were plaintiffs below. They brought suit against appellant to recover wakes alleged to be due Corse, Patty, and Palmer employés of appellant, upon separate assignments made by the parties named to appellees.

The Corse assignment is as follows: 'Articles of agreement made and entered into this 23d day of October, A. D. 1900, by and between Employés' Credit Company, E. J. Cavanaugh Mang., of Denver, Arapahoe county, Colorado, party of the first part, and F. A. Corse, of Denver, Arapahoe county, Colorado, party of the second part, witnesseth: That said party of the second part hereby sells, assigns, and transfers to said party of the first part for the sum of $27.50, and other good and valuable consideration, the receipt of which is hereby acknowledged, any and all of his salary, which amounts to $75 per month and becomes due and payable on the 15th day of each and every month, for the period of one year from the date hereof, or until such time as the sum first written above has been paid by or for said party of the second part to said party of the first part. Said party of the first part has made and delivered to said party of the second part written authority to collect the said salary when it shall become due from Chicago, Burlington & Quincy Railroad Company, the conditions of said written authority being that said party of the second part shall turn over to said party of the first part the amount of $27.50 on each and every pay day until the amount first written above has been paid to said party of the first part. On the failure of said party of the second part to turn over to said party of the first part said money as provided, the said authority to collect said salary shall become null and void, and all of the money to be paid to said party of the first part shall become due and payable at once, and the said party of the first part shall collect all of the said salary of the party of the second part from the said employers, and shall apply the same to the liquidation of the obligation due said party of the second part to the said party of the first part, until the total amount collected and retained by said party of the first part shall amount to $27.50, together with an attorney fee of $10 as liquidated damages and to cover the expense to said party of the first part in collecting the said salary or wages. It is further mutually agreed to by and between the parties to this contract that in case the said party of the second part shall at any time before the full amount of $27.50 has been received by said party of the first part, for any reason leave or discontinue in the employ of said present employers, the assignment of the salary or wages of the said party of the second part shall extend and apply to any and all positions hereafter had or occupied by said party of the second part for a period of ten years from and after this date, and the said party of the first part is hereby authorized to collect the salary of said party of the second part from any and all persons by whom said party of the second part may be employed during said ten years, until the amount collected and retained by the party of the first part shall amount to $27.50 and attorney's fees and interest. The said party of the second part hereby instructs his present employers, or any other person, firm, or copartnership, company, corporation, organization, or official by whom he may hereafter be employed, or from whom he may have any money due, to, on presentation of a copy of this contract, duly verified, any time before the expiration of ten years from the date hereof, pay to the order of the said party of the first part, for value received, the amount designated as due in the affidavit, filed with the verified copy of this contract, with interest at 10 per cent. per annum from the date hereof, out of any money his, due as salary, wages, commissions or from any other source, or to become due after notice to said debtor of the existence of this contract. The said party of the second part hereby irrevocably waives all exemptions or other rights he may have by reason of any law of any state in which he is now, or may hereafter be, employed or live, and orders such payment out of the first money to become his due. Said party of the second part further agrees not to collect or attempt to collect, any part of any salary, wages, commissions or other money due him from any employer or other person after a written notice of this contract to said employer or other person until amount due said party of the first part, or his assignees or representative, has been paid in full. It is further mutually agreed by and between the parties to this contract that when the amount due said party of the first part from said party of the second part, as shown by this contract, has been paid in full, this contract shall become null and void, and of no further effect. In witness whereof the said parties to this contract have hereunto set their hands and seals on the day and year first above written. Employés' Credit Co. E. J. Cavanaugh, Mangr. [Seal.] F. A. Corse. [Seal.]' The Patty and Palmer assignments are in force and effect, the same as the Corse assignment, except that in the Patty assignment the consideration is stated at $39 and in the Palmer assignment at $26, and the monthly salary at $75 and $50, respectively. The complaint was in three counts alleging three separate assignments. The answer as it finally stood was a general denial. Appellees proved the execution of the assignments by the assignors, that assignors were employés of appellant at the dates of the several assignments, the several amounts due from the appellant to each assignor at the respective dates when assignors quit the service of appellant, as follows: Corse, $42.11; Patty, $27.80; and Palmer, $12--and introduced in evidence, over the objection of appellant, the several assignments. Defendant offered no evidence. The court instructed the jury to return a verdict in favor of appellees for $79.62, upon which judgment was rendered, from which is this appeal.

Many errors are assigned and urged by appellant based on rulings on demurrers and motions interposed to the pleadings, the reception and rejection of testimony, the instruction to the jury to find for appellees, and the refusal to instruct as requested by appellant, most of which may be comprehended in this statement found in appellant's brief. 'We contend that these contracts and each of them were on their faces illegal, invalid, unenforceable, and void, because in violation of law, the Constitutions of Colorado and of the United States, the statutes of Colorado, and because against public policy; and, further, because the court below erred in refusing to permit examination of witnesses and the introduction of evidence tending and intending to disclose and establish the illegality and invalidity of said alleged contracts.' The argument of counsel for appellant in support of this contention is erudite and forceful, and if time and space permitted, it would be a pleasure to state and review it here. Since the filing of appellant's brief, the Supreme Court of Illinois has ruled the questions discussed by counsel under this head adversely to its contention, and the conclusion arrived at by that court meets with our approval. In Mallin v. Wenham et al., 209 Ill. 252, 70 N.E. 564, 65 L.R.A. 602, 101 Am.St.Rep. 233, from the statement of facts it appears that Mallin had borrowed from Wenham at usurious rates of interest $342 more than he had paid back, and to secure such indebtedness executed and delivered to Wenham the following assignment: 'For a valuable consideration to me in hand paid by C. F. Wenham, the receipt whereof is hereby acknowledged, I do hereby transfer, assign, and set over to said C. F. Wenham, his heirs, executors, administrators or assigns, all salary or wages, and claims for salary or wages, due or to become due me from Armour & Co., or from any other person or persons, firm, copartnership, company, corporation, organization, or official by whom I am now or may hereafter become employed, at any time before the expiration of ten years from the date hereof. I do hereby constitute, irrevocably, the said C. F. Wenham, his heirs, executors, administrators, or assigns, my attorney, in my name to take all legal measures which may be proper or necessary for the complete recovery and employment (sic) of the claim hereby assigned and I hereby authorize, empower and direct the said Armour & Co. or any one by whom I may be employed as above, to pay the said demand and claim for wages or salary to the said C. F. Wenham, his executors, administrators or assigns, and hereby authorize and empower him or them to receipt for the same in my name. Chicago, Ill., third day of June, 1898. J. H. Mallin.' Wenham brought suit in the name of Mallin for the use of Wenham against Armour & Co., claiming the wages of Mallin by virtue of the above assignment. Mallin filed his bill in equity, without offering to repay the $342 or any part thereof, and prayed that the assignment be declared null and void, and that Wenham be restrained from enforcing the same. The following questions were presented: (1) Whether an assignment transferring...