Edgell v. Tucker

• Decision Date: 31 March 1867
• Citation: 40 Mo. 523
• Parties: STEPHEN M. EDGELL, Respondent, v. CHARLES L. TUCKER, Interpleader, and THOMAS A. BUCKLAND, Garnishee, Appellant.
• Court: Missouri Supreme Court

40 Mo. 523

STEPHEN M. EDGELL, Respondent,

v.CHARLES L. TUCKER, Interpleader, and THOMAS A. BUCKLAND, Garnishee, Appellant.

Supreme Court of Missouri.

March Term, 1867.

Appeal from St. Louis Circuit Court.

Krum, Decker & Krum, for appellant.

The third instruction declared that a novation to be good against attaching creditors must be complete, absolute, unconditional, and mutually binding upon all the parties. The idea that a novation cannot be conditional is erroneous. The doctrine of novation was obtained from the civil law. Under the civil law, an engagement could be annulled or diminished by the substitution of a second engagement in its place; this constituted a novation--a substitution of a new for an old debt. The old was extinguished for the new debt. This could be accomplished in two ways: First, without a change of the persons, by changing only the value of the obligation; and secondly, by a change of the debtor, and this whether the first obligation subsisted, the second debtor charging himself therewith instead of the former who was discharged, or whether the new debtor made a new obligation--Heaton v. Angier, 7 N. H. 397; Crowfoot v. Gurney, 9 Bing. 372; Hyde et al. v. Borreau, 16 Pet. 169, 180.

In equity, however, an assignment of a chose in action is as good and as valid as the sale of a chattel. In this State choses in action are assignable and transferrable like chattels, the only qualification being that the debtor shall have notice of the assignment; his assent to the assignment is entirely unnecessary, and it is not essential that the transfer should be in writing-- Tibbetts v. George, 5 Ad. & El. 115; Ex parte Spruitt, 3 Swanst. 392; Boecka v. Nuella, 28 Mo. 180. It is not necessary that the notice should be by any particular instrument, or in any particular form--Ashby v. Winston, 34 Mo., 315; Burn v. Carvalho, 4 Myl. & C. § 702.

It is immaterial also that the precise amount of money in Buckland's hands was unknown when he was ordered to pay to the appellant--Clark v. Mauran, 3 Paige, 373; Crowfoot v. Gurney, 9 Bing. 372.

This being a mere race between creditors, the doctrine qui prior est tempore, potior est jure, applies. Tucker had a complete equitable title to the funds before the attachment, a title which did not depend upon the assent of Buckland. It is sufficient that Buckland had notice of the transfer, which is not denied. The title of Tucker, by the direction and assignment of Smith & Bullens, was such that he could have maintained an action against Buckland, and would have recovered without having shown the latter's assent--Kimball v. Donald, 20 Mo. 580; Tieman v. Jackson, 5 Pet. 580, 595.

Glover & Shepley, and Currier, for Respondent.

The facts in the case do not show any novation, but, on the contrary, show conclusively that there was no novation, for--

I. In order to be a novation the transaction must be instant--absolute--a present change by which a debt is lifted from the shoulders of one party and placed upon those of the other--1 Pars. on Cont. 217-18; Heaton v. Angier, 7 N. H. 397. Here there was no lifting of the debt; that is admitted on all hands. It was in the beginning connected with the condition imposed, that he (Buckland) would pay Tucker if, when he got to his mill, he did not find he had been garnished. There was no idea in the minds of either of the parties at that time, that there was anything said or done that was then in any way operative in any way to change the relation of the parties.

II. In order to be operative it must be upon no contingency-- Butterfield v. Hartshorn, 9 N. H. 345.

The idea of novation under our law is that there must be a present accord and satisfaction. If that is not done, there is no consideration for the promise, and the party making it can revoke the promise at his pleasure. There has nothing been done that binds him in any way; it all rests upon a verbal conditional promise without consideration. If Buckland had, before he reached his mill, died on the road, then there had been nothing done of any binding obligation upon any one. No authority can be found in any decision at common law that a conditional promise can be maintained as a novation. It has sometimes been sustained when there was a present interest transferred, but the amount was uncertain; or, rather, such cases as 9 Bing. 372, and 3 B. & C. 842, have been supposed to hold such a doctrine, though those decisions depend upon different principles.

III. It must have operated to instantly release Smith & Bullens from the debt they owed Tucker--Caxon v. Chadley, 3 Barn. & C. 591; Butterfield v. Hartshorn, 7 N. H. 345.

Unless at the time Buckland had contracted a new debt of his own while they (the three parties) were together, the transaction is simply an agreement conditional to pay the debt of another, and therefore within the statute of frauds.

There was no equitable assignment of the debt by Smith & Bullens to Tucker; for, 1. It is purely verbal, and unless it is such a transaction as makes it a novation, then there is no assignment, and cannot be, for there is no consideration--Kimball v. Donald, 20 Mo. 577, affirmed in Ford v. Angelrodt, 37 Mo. 57. 2. There was no release of the debt due by Smith & Bullens to Tucker.

Wagner, Judge, delivered the opinion of the court.

Stephen M. Edgell sued the firm of Smith & Bullens by attachment, and Buckland was summoned as garnishee. In his answer to interrogatories filed, Buckland admitted that he had in his hands the sum of $2,102.21, which he owed Smith & Bullens for the purchase of wheat, on the day of the service of the garnishment, but stated that before he received notice of the garnishment the debt wrs assigned and transferred to Chas. L. Tucker, and that therefore he owed Smith & Bullens nothing. The facts shown upon the trial are, briefly, as follows:

On the 13th day of December, 1864, Buckland and Smith, of the firm of Suith & Bullens, met upon the street in the city of St. Louis, and Smith requested of Buckland a check for the balance for which he was indebted to the firm. The parties not recollecting the precise amount of the indebtedness, the demand was made for $2,000. At the time Tucker came up, and Smith, at the instance of Tucker, requested Buckland to pay the balance in his hands to him. Buckland told Smith, in the presence of Tucker, he would do so, if, when he got to his office, he did not find a notice of attachment, which would hold the money. Smith then left the party, and Buckland told Tucker that he had better get a written order from Smith & Bullens on him for the money in his hands, as he did not want to pay except on a written order from them. Tucker said he would see them, and the two parted. Buckland proceeded to his office, and on his arrival there he found no legal process had been left, but in about half an hour the sheriff garnished him as a debtor of Smith & Bullens, and in about one hour thereafter Tucker presented to him a written order of S. & B., requesting him to pay Tucker the amount in his hands due and owing them. It is conceded that Smith & Bullens owed Tucker about $2,800, a sum considerably in excess of the amount which Buckland was indebted to them. By order of the court, Tucker was brought in to interplead, and the real contest is, whether the attaching creditor or Tucker is entitled to the money which has been permitted to lie in Buckland's possession, awaiting the final determination of a court of competent jurisdiction. The cause was tried before the court without the intervention of a jury, and judgment was given for the plaintiff, the attaching creditor.

It is insisted here for the appellant, that the declarations of law given by the court are erroneous and inconsistent with themselves, and that, for this reason, the judgment should be reversed. But the only question is the true interpretation of the agreement entered into between Smith, Buckland and Tucker, and if...