Enochs-Havis Lumber Co. v. Newcomb

Decision Date21 October 1901
Citation30 So. 608,79 Miss. 462
CourtMississippi Supreme Court
PartiesENOCHS-HAVIS LUMBER COMPANY v. GUS NEWCOMB ET AL

FROM the chancery court of Warren county. HON. W. C. MARTIN Chancellor.

The Enochs-Havis Company, appellant, was complainant, and the appellees, Newcomb and others, defendants in the court below.

The appellant filed its bill in chancery against Gus Newcomb, the city of Vicksburg, George Anderson, attorney for George Walton, and M A. Kinney, to have two claims (one for $ 68 and one for $ 125) due bye the city of Vicksburg to Gus Newcomb and claimed, respectively, by George Walton and M. A. Kinney adjudicated to the appellant, and the board of mayor and aldermen required to pay said claims to it instead of to Walton and Kinney. The bill alleges that Gus Newcomb was a contractor and builder, and that the Enochs-Havis Lumber Company was a corporation, and was dealing in lumber, mill work, and all sorts of building material; that said Enochs-Havis Lumber Company, and the said Gus Newcomb entered into an agreement whereby it was substantially agreed that the Enochs-Havis Lumber Company should furnish Newcomb with building materials, such as lumber, mill work, shingles etc., and with money to cover his pay rolls as they became due, to enable him to take and execute contracts for building houses, etc., but any contract which Newcomb should make was to be first submitted to and approved by it, and that such contract should be assigned to it as security for any building material and money which should be furnished to execute and carry out the contract; that said contracts should be assigned by Newcomb to the First National Bank of Vicksburg for the use and benefit of the Enochs-Havis Lumber Company, and delivered to the bank for collection; that after the execution of this contract Newcomb began taking contracts, which were submitted to appellant and approved by it; that these contracts were assigned by Newcomb to the bank for the use and benefit of appellant, and that appellant began furnishing him with materials and money to carry on his. business; that this course of dealings continued between them until about the 1st of September, 1899, at which time Newcomb left the country, indebted to appellant in the sum of $ 1,600, which amount has never been paid; that among the contracts taken by Newcomb under this contract were two with the city of Vicksburg (one for $ 68 and the other for $ 125); that, when these two contracts were made, Newcomb, in accordance with his written agreement with appellant, submitted to it his figures and estimates, which were approved, and in pursuance of said written contract Newcomb was instructed to close the contracts and deliver them, properly assigned, to the bank for the use and benefit of appellant, which Newcomb afterwards reported that he had done; that appellant thereupon furnished the material to do the work and the money to pay the pay rolls, upon the faith of its original agreement; that, while Newcomb reported to appellant that he had delivered the contracts in each of the above named cases to the bank pursuant to his agreement, in fact he had not done so, but, in fraud of appellant's rights, had kept and preserved the same for himself; and that at or about the time the work was completed, Newcomb gave some sort of written transfer to M. A. Kinney of the $ 68 due him, and another to George Anderson, attorney for George Walton, for the $ 125 due him from the city. George Walton and M. A. Kinney demurred separately to this bill. Decree pro confesso was taken against Newcomb. The demurrers to the bill were sustained by the court below, and the bill dismissed. From this decree the complainant appeals.

Affirmed.

Dabney & McCabe, for appellant.

The authorities sustain both of our contentions that the original contract was itself an assignment of the claims in controversy, and if not, that the transactions with reference to these specific claims between Gus Newcomb and appellant at the time they were made amounted to an equitable assignment of the same. 2 Am. & Eng. Enc. L. (2d ed.), 1055; Pass v. McRea, 36 Miss. 143; Perkins v. Gibson, 51 Ib., 699.

The statute limits the contracts to be recorded to deeds of trusts and mortgages. Code 1892, § 2457. It is manifest that the transaction between Newcomb and appellant was neither a deed of trust nor a mortgage, and was good not only as between them, but as to all third parties, whether recorded or not. In other words, the statute invoked does not cover the case. This transaction was an assignment of a chose in action, and there is no statute requiring such assignments, whether they be absolute or conditional, to be recorded. There is no law requiring an equitable assignment to be written. 2 Am. & Eng. Enc. L. (2d ed.), 1056.

There is nothing in the bill on the point as to whether or not George Walton or his attorney, George Anderson, had any notice at the time the assignment was made to him of the contract by appellant...

To continue reading

Request your trial
7 cases
  • Salem Trust Co v. Manufacturers Finance Co, 74
    • United States
    • United States Supreme Court
    • February 18, 1924
    ...& Co. v. Morrison, 25 Vt. 593, 599. See, also, Merchants' & Mechanics' Bank v. Hewitt, 3 Iowa, 93, 102, 66 Am. Dec. 49; Lumber Co. v. Newcomb, 79 Miss. 462, 466, 30 South. 608; Perkins v. Butler County, 44 Neb. 110, 116, 62 N. W. 6 In Ward v. Duncombe, Lord McNaghton said (page 391): 'The g......
  • First Nat. Bank of Aberdeen v. Monroe County
    • United States
    • United States State Supreme Court of Mississippi
    • April 2, 1923
    ......We will refer the court to. the following authorities directly in point: Lumber Co. v. Newcomb, 79 Miss. 462; Matthews v. Hamblin, . 28 Miss. 611; Ex parte Est. Phillips, 66 ......
  • Canton Exchange Bank v. Yazoo County
    • United States
    • United States State Supreme Court of Mississippi
    • June 15, 1926
    ......As to successive. assignments, Judge WHITFIELD states the rule in Lumber. Co. v. Newcomb, 79 Miss. 462 at 466. This rule has been. repeatedly approved by this court. ......
  • First Nat. Bank Of Aberdeen v. Monroe Cty.
    • United States
    • United States State Supreme Court of Mississippi
    • January 1, 1920
    ......We will refer the court to. the following authorities directly in point: Lumber. Co. v. Newcomb, 79 Miss. 462;. Matthews v. Hamblin, 28 Miss. 611;. Ex parte Est. ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT