Griggs v. City of St. Paul

• Decision Date: 05 January 1894
• Docket Number: 8467
• Citation: 57 N.W. 461,56 Minn. 150
• Parties: John W. Griggs v. City of St. Paul
• Court: Minnesota Supreme Court

57 N.W. 461

56 Minn. 150

John W. Griggs v. City of St. Paul

No. 8467

Supreme Court of Minnesota

January 5, 1894

Submitted on briefs December 19, 1893.

Appeal by defendant, the City of St. Paul, from an order of the District Court of Ramsey County, William Louis Kelly, J made July 1, 1893, denying its motion for a new trial.

On June 22, 1891, Frank P. McCann's bid of $ 2,933.33, for grading Park Avenue from Sherburne Avenue to Arch Street in St. Paul had been accepted and the work awarded to him by the Board of Public Works. The contract was being prepared and he was about to commence the work. On that day he gave William Van Slyke an order on the City for $ 250, copied in the opinion, and it was filed that day with the City Comptroller. The next day McCann's contract with the City was signed. He completed the grading and on July 11, 1891, assigned to the plaintiff, John W. Griggs, all money then due, or which might become due to him from the City under this contract. The assignment was filed July 13, 1891, with the comptroller. Under it, Griggs claimed the entire price of the work, but the City, being indemnified by Van Slyke, paid to him on January 2, 1892, the $ 250 and the balance to Griggs. Thereupon Griggs brought this action against the City to recover that sum. A jury was waived and the Court made findings and ordered judgment for the plaintiff for the $ 250, saying:

"The order dated June 22, 1891, drawn on the defendant City by Frank P. McCann and payable to William A. Van Slyke is for the payment absolutely of $ 250, and is not an order drawn on any particular fund. Such instrument is a draft or inland bill of exchange. Hillstrom v. Anderson, 46 Minn 383. Being an ordinary draft, and not for the entire amount due or to become due to the drawer, while unaccepted, it did not operate as an equitable assignment of the debt pro tanto. Lewis v. Traders' Bank, 30 Minn. 134. The mere retention of the Van Slyke order is not an acceptance. Holbrook v. Payne, 17 Neb. 643. Besides, the order was for money then due. At the date of the Van Slyke draft the Park Avenue contract had not been signed and delivered. It was fully entered into the next day, and of course nothing was due under it at that time."

Order reversed.

Walter L. Chapin, for appellant.

A draft for the whole of a particular specified fund or debt amounts to an assignment of such debt or fund, even without acceptance. Lewis v. Traders' Bank, 30 Minn 134. So also is an order for a part of a specified fund, an assignment thereof which equity will protect. Canty v. Latterner, 31 Minn. 239; Dean v. St. Paul & D. R. Co., 53 Minn. 504; Schilling v. Mullen, 55 Minn. 122. An order for money payable generally, not specifying any fund, is a bill of exchange and does not operate to hold a fund without acceptance by the drawee. Lewis v. Traders' Bank, 30 Minn. 134; Hillstrom v. Anderson, 46 Minn. 382. The Court below held that the Van Slyke order did not specify a particular fund, and hence was a bill of exchange and did not operate to hold $ 250 of the Park Avenue grading fund for his benefit. The City considered that it did specify a fund, and afterwards paid the sum to Van Slyke, deducting it from the contract price for the grading. If Van Slyke did receive an assignment of part of the grading fund, of course Griggs' claim was subject to it and the latter cannot recover. McDonald v. Kneeland, 5 Minn. 352; Muir v. Schenck, 3 Hill 228; State ex rel. v. City of Lake City, 25 Minn. 404.

The Court has judicial knowledge that the City of St. Paul is not a banking institution; that money must be appropriated to particular uses by the city authorities before it can be paid. Parties could not contemplate in the giving of this order that the City would honor it generally. The only reasonable construction is, that McCann and Van Slyke knew the situation and acted on their knowledge that the money would be paid when due only, and after it was earned.

Money to be earned in the future can be assigned in this way. Metcalf v. Kincaid, 87 Ia. ; Pomeroy, Eq. Jur., §§ 1280-1283; Brill v. Tuttle, 81 N.Y. 454; McDaniel v. Maxwell, 21 Oregon, 202.

George E. Budd, for respondent.

The Van Slyke order is for a sum certain, is payable in money absolutely and not contingently and not out of any particular fund, but generally. It is therefore a bill of exchange. Hillstrom v. Anderson, 46 Minn. 382; Wells v. Brigham, 6 Cush. 6; Defee v. Smith, 43 Ark. 221; Pierson v. Dunlop, Cowp. 571; Rice v. Ragland, 10 Humph. 545; Pomeroy, Eq. Jur. § 1280; Corbett v. Clark, 45 Wis. 403; Cashman v. Harrison, 90 Cal. 297.

A negotiable draft, check or order is not, in Minnesota, an assignment of any part of the funds of the drawer in the hands of the drawee, unless the check, order or draft be for the entire amount of a special fund which the drawer has with the drawee. Lewis v. Traders' Bank, 30 Minn. 134; Bank of Republic v. Millard, 10 Wall. 152; Attorney General v. Continental Ins. Co., 71 N.Y. 325; Grammel v. Carmer, 55 Mich. 201; Coates v. Doran, 83 Mo. 337; German Nat. Bank v. Farmers' Deposit Bank, 118 Pa. St. 294; Holbrook v. Payne, 151 Mass. 383; Schmittler v. Simon, 101 N.Y. 554.

There are two good reasons why Van Slyke could not assign any of the fund afterwards assigned to plaintiff. The first is, that the amount of the order is to be deducted from "money which may be due." The words are in the present tense. No money was then due and never became due until after assignment to plaintiff; therefore, nothing was assigned. Gunther v. Darmstadt, 14 Daly 368. The second is, that an assignment of the consideration of a contract not entered into, is void, it is incapable of enforcement. A mere possibility is incapable of assignment. Mulhall v. Quinn, 1 Gray 105; Lehigh Valley R. Co. v. Woodring, 116 Pa. St. 513; Runnells v. Bosquet, 60 N.H. 38; Eagan v. Luby, 133 Mass. 543; Herbert v. Bronson, 125 Mass. 475; Low v. Pew, 108 Mass. 347; Skipper v. Stokes, 42 Ala. 255.

OPINION

Mitchell, J.

The short facts of this case are that on June 23d one McCann entered into a contract with the city to grade Park avenue, for an agreed price.

On June 22d he executed to one Van Slyke an order in the following words:

"June 22, 1891. To the City of St. Paul: Pay to Wm. A. Van Slyke two hundred and fifty dollars, and deduct that amount from any money which may be due me on account of the grading of Park avenue. Frank P. McCann."

Van Slyke filed the order with the city comptroller. Subsequently, McCann assigned his money then due or to become due on...