Harris v. Hazlehurst Oil-Mill & Mfg. Co.

• Decision Date: 28 January 1901
• Citation: 30 So. 273,78 Miss. 603
• Parties: GEORGE W. HARRIS v. HAZLEHURST OIL MILL & FERTILIZER COMPANY
• Court: Mississippi Supreme Court

30 So. 273

78 Miss. 603

GEORGE W. HARRIS v. HAZLEHURST OIL MILL & FERTILIZER COMPANY

Supreme Court of Mississippi

January 28, 1901

FROM the chancery court of Copiah county. HON. HENRY C. CONN Chancellor.

The Hazlehurst Oil Mill & Fertilizer Company, the appellee, was the complainant in the court below, and Harris, the appellant, was defendant there. The complainant had a judgment against defendant, and defendant had a judgment against complainant. The latter was the smaller of the two. The object of the bill was to have defendant's judgment satisfied bye a credit on the one belonging to complainant it being shown that the defendant was insolvent, etc. The case was tried upon an agreed statement of facts, which was as follows:

"Agreed Facts.--On the twenty-third day of March, 1899, the Hazlehurst Oil Mill & Fertilizer Company filed a declaration against G. W. Harris on an open account for the sum of $ 436.13. Then, on the twenty-seventh day of March, 1899 Harris filed a declaration against the oil mill, etc company for an alleged breach of contract that he claimed to have had with it to furnish him hulls and meal for his live stock during the season of 1898 and 1899, embracing the fall of 1898 and the beginning of the year 1899, claiming $ 5,792.40 as damage sustained by him for the alleged breach of said contract that he had with the oil mill, etc., company. On the fourteenth day of December, 1899, Harris failing to plead to the declaration filed against him by the oil mill, etc., company, a judgment by default was taken by the oil mill, etc., company for the amount they had sued for $ 436.13, with interest and the costs of suit.

The oil mill, etc., company appeared and pleaded to the declaration filed against it by Harris, and among other pleas filed in the case by the oil mill, etc., company, the first plea is to the effect that the said defendant, by its attorneys, says that it never entered into any such contract as plaintiff, by his declaration, hath alleged it entered into with him, and of this it puts itself upon the country. Issue was joined on this and other pleas in the case, the case argued and submitted to a jury, who retired and found a verdict for the plaintiff, Harris, in the sum of $ 200. This verdict was returned and judgment entered on the eighteenth day of December, four days after the judgment obtained by the oil mill, etc., company against Harris.

There was but one course of dealing between the oil mill, etc., company and Harris and the open account sued on by the oil mill, etc., company, and the breach of the contract sued on by Harris grew out of one and the same transaction, Harris having bought hulls and meal of the said oil mill, etc., company to the amount of $ 436.13 under the said contract claimed by him to have been made by him with the said oil mill, etc., company.

Before the institution of the suit by Harris, on the twenty-third day of March, 1899, he contracted verbally with his attorneys, Williams & Mayes, to conduct the suit for him, agreeing to give them forty per centum of the amount they should recover in the suit against the oil mill, etc., company, for the breach of the alleged contract, and it is agreed that Harris is insolvent and was insolvent at the time that he made the contract with Williams & Mayes, and that this was the only way he had to pay them. Williams & Mayes knew at the time that they brought the suit for Harris that the oil mill, etc., company was claiming, on open account against Harris, the amount that they subsequently sued for and reduced to judgment on December 14, 1899.

At the time of filing the original bill in this cause, the oil mill, etc., company had no notice that the attorneys, Williams & Mayes, were asserting any claim to the judgment, either a legal or an equitable claim, but that at the time of the filing of the amended bill the oil mill, etc., company knew that the entry made on the judgment rolls in the clerk's office in the circuit court had been made, and they admit that they had been served with the notice attached to Harris' answer, and that it had been served on the day and date whereon it purports to have been made.

It is agreed that the copies of the notices given and attached hereto as exhibits were given on the dates named in the notices, and that they contained just what is set out in the exhibits."

EXHIBIT TO AGREED FACTS.

"To I. N. Ellis, president of the Hazlehurst Oil Mill & Fertilizer Company, and R. N. Miller, attorney of record for same:

We hereby notify you that, under a contract made with George W. Harris, plaintiff in the case of George W. Harris v. Hazlehurst Oil Mill & Fertilizer Company, the said contract having been made before the institution of said suit, we were to receive forty per cent. of any amount recovered by judgment in said case. We were authorized by Mr. Harris to credit the judgment he holds in his name against you for the sum of $ 120, the amount of his interest in the said judgment, and this credit we have made on the execution now in the hands of the Sheriff. We demand payment now of our interest in same, amounting to $ 80, and, unless same is paid, we have instructed the sheriff to make same by levy.

WILLIAM WILLIAMS.

ROBT. B. MAYES.

Hazlehurst Mississippi, April 25, 1900.

Accept notice.

SEXTON & MILLER,

Att'ys for Oil Mill."

ENTRY ON JUDGMENT ROLL--PART OF AGREED FACTS.

"We acknowledge release and satisfaction of $ 120, Harris interest in judgment, which is satisfied by applying the above amount as a credit on judgment obtained by Oil Mill v. Harris, and order execution as to the remainder, $ 80.

WILLIAM WILLIAMS,

R. B. MAYES,

Att'ys Plaintiff."

April 25, 1900.

Decree reversed and cause remanded.

Robert B. Mayes, for appellant. ^[*]

The facts in this case are so brief, and are also agreed to by the attorneys representing the parties, that I deem any comment on them here entirely unnecessary. So I shall content myself with citing the court's attention to the authorities on which I rely for a reversal of the decision of the chancellor in the court below in making the injunction herein granted perpetual.

1. That any chose in action is assignable in this state is settled in the affirmative beyond all question. Code 1892, § 660; 59 Miss. 280.

2. This assignment need not be in writing, unless the party to whom it is assigned desires to maintain an action in his own name. Code 1892, § 660.

3. An assignment of a cause of action may be either a legal assignment or it may be an equitable assignment. In case of a legal assignment, as a matter of course, all the formalities of transfer have to be complied with. But, where it is an equitable assignment, it does not obtain its validity from the observance of the legal formalities, but from the intention of the parties; any order, writing or act, or any oral or written declaration evidencing an intention to make an assignment, is just as effectual as the most formal instrument. The leading authorities on this subject are to be found in 7 George, 143; 3 Pomeroy's Eq. Jut., secs. 1282, 1271, and 89 N.Y. 518. Also the following authorities are cited: Bisphman's Eq., sec. 167; 141 Mo. 113; 2 Story's Eq. Jur., p. 376.

4. The agreement by Harris to give his attorneys "forty per cent. of the amount that they should recover in judgment," vested in the attorneys, then and there, a valid equitable interest in the judgment. This agreement made by Harris with his attorneys must not be confounded with the cases where the agreement was to "pay out of the verdict" a certain amount. In those cases it is held that such an agreement does not constitute an "equitable assignment," for the reason that it is a mere personal responsibility on the part of the person making the agreement, coupled with an executory agreement to pay "out of the proceeds." But the facts in the case at bar do not show that any such agreement was entered into between Harris and his attorneys, or that it was so understood. The agreement shows conclusively that it was Harris' intention to convey a present vested interest in the cause of action to his attorneys of forty per cent based on the consideration that they would conduct his cause for him. This constituted an equitable assignment of the claim pro tanto. It is the intention of the parties that is to control. The test is as to whether or not he made an equitable assignment. Was Harris ever personally responsible to his attorneys for a single cent? The answer is bound to be in the negative. Harris was insolvent and the fact was known to his attorneys. They relied upon this assignment, and not Harris, for their compensation. There is also a distinction between the case at bar and the cases that hold that there is no equitable assignment where the agreement is that the attorney "shall have a reasonable amount for his services," for the very obvious reason that such a contract is uncertain, and, therefore, void. What is a "reasonable amount" is always a question of proof. Harris has done all that he could do to make an equitable assignment to his attorneys except say to them, "Here is an equitable assignment." All the facts and the circumstances go to show that he intended it as such, and that after his contract with his attorneys he had no interest in or control over the amount of their interest in the cause of action, and if it was Harris himself in the court, attempting to deny that he had made an equitable assignment to his attorneys in the face of this record, he would not be heard to deny it for a moment, and if it is an equitable assignment as to him, it must be an equitable assignment as to all parties who represent him, and they cannot avail themselves of any irregularities that Harris himself could not...