Dole v. Farwell

• Decision Date: 02 June 1903
• Citation: 72 N.H. 183,55 A. 553
• Parties: DOLE v. FARWELL et al.
• Court: New Hampshire Supreme Court

55 A. 553

72 N.H. 183

DOLE

v. FARWELL et al.

Supreme Court of New Hampshire. Sullivan.

June 2, 1903.

Exceptions from Superior Court; Peaslee, Judge.

Action in foreign attachment by George W. Dole against William H. Farwell; Howe & Quimby, claimants. The claimants hold an assignment of the defendant's wages, which the plaintiff seeks to avoid as fraudulent. The claimants are grocers, and, being creditors of the defendant, took an assignment of wages to become due him from the trustee for a term of months. The assignment was duly executed and recorded. The object of the claimants was to secure an old debt, and obtain pay for what they might thereafter sell the defendant. His object was to obtain credit, and also to defeat attachments by his other creditors. These facts were known to the claimants, but they were not guilty of any fraud in fact. When the assignment was made, they agreed with the defendant to let him have money from time to time out of that collected from the trustee, with which to pay his rent, doctor's bills, etc. There was no agreement as to how much they would let him have, or when they would pay it to him. They understood that they could apply the whole to their account if they saw fit. They drew the pay fortnightly, retained a greater or less part of it at their pleasure, and paid the balance over to the defendant. After the service of the writ the trustee paid the claimants the wages earned by the defendant before the service of the writ, and the claimants paid a part thereof to the defendant. His debt to the claimants at the time of the trustee process was greater than the sum due him from the trustee. The trustee was discharged, and the plaintiff excepted. Exceptions overruled.

Hermon Holt, for plaintiff.

Ira Colby & Son, for claimants.

BINGHAM, J. It appears that the claimants took the assignment for a valid consideration, and that there was no fraud in fact Under such circumstances, their knowledge that the defendant desired to prevent attachments of his future earnings by other creditors did not invalidate the assignment. Fradd v. Charon, 69 N. H. 189, 44 Atl. 910.

So far as the assignment was for the support of the defendant and his family, it could not be declared fraudulent in law. Provencher v. Brooks. 64 N. H. 479, 481, 13 Atl. 641.

When the trustee process is invoked, the plaintiff stands in the shoes of the principal defendant, as respects charging the trustee, and can raise only such questions as are open to ...