Heller v. Lutz

• Citation: 164 S.W. 123,254 Mo. 704
• Parties: HELLER et al. v. LUTZ.
• Decision Date: 24 December 1913
• Court: United States State Supreme Court of Missouri

164 S.W. 123

254 Mo. 704

HELLER et al. v. LUTZ.

Supreme Court of Missouri.

December 24, 1913.

Rehearing Denied February 10, 1914.

1. ASSIGNMENTS (§ 57) — ASSIGNMENT OF WAGES—NOTICE TO DEBTOR—SUFFICIENCY.

Laws 1911, p. 143, providing that all assignments of wages, salaries, or earnings must be in writing, with the correct date of assignment, and the amount, names of parties, etc., being mandatory, and its purpose being to limit the right of creditors and the power of debtors in the assignment of wages, a creditor's notice to an employer of assignment of wages given by an employé should be in strict conformity to the statute, and hence a notice failing to give the date of the assignment or the purport thereof was insufficient.

2. ASSIGNMENTS (§ 11)—SUBJECTS OF PROPERTY—RIGHT TO ASSIGN UNEARNED WAGES —"INCORPOREAL PROPERTY RIGHT."

An assignment of unearned wages is not the transfer of an incorporeal property right, since, though intangible and invisible, it does not issue out of anything corporeal, either real or personal, and, as it may be extinguished at the will of the assignor or employer, it would present the anomaly of a right without a remedy.

3. ASSIGNMENTS (§ 13)—FUTURE PROFITS OR EARNINGS—EXISTING CONTRACT.

Though there were no law prohibiting the assignment of unearned wages, there could be no valid assignment unless there was, at the time of the assignment, a definite contract of employment between the assignor and his employer.

4. ASSIGNMENTS (§ 3)—POLICE POWER—ASSIGNMENT OF FUTURE EARNINGS.

Laws 1911, p. 143, providing that all assignments of wages, salaries, or earnings, not earned at the time the assignment is made, shall be null and void, is a valid exercise of the police power, since, as the right to assign such wages is not a property right or chose in action, it violates no fundamental right of the citizen, but it does protect workmen from the unscrupulous and overreaching, and, in doing that, it thereby furthers the interest of the public generally.

5. COURTS (§ 89) — PREVIOUS DECISIONS AS PRECEDENTS.

When the law and precedents conflict, the courts should follow the law.

6. ASSIGNMENTS (§ 3)—POLICE POWER—ASSIGNMENT OF UNEARNED WAGES.

Laws 1911, p. 143, prohibiting the assignment of unearned wages, would be valid as a wholesome exercise of the police power, though such right to assign were a property right or a chose in action.

7. STATUTES (§ 115)—SUBJECTS AND TITLES OF ACTS.

Laws 1911, p. 143, prohibiting the assignment of unearned wages, is sufficiently embraced within its title, "An act to regulate the assignment of wages, salaries and earnings."

En Banc. Appeal from St. Louis Circuit Court; Hugo Muench, Judge.

Action by E. B. Heller and another, doing business as the Goodwill Clothing Company, against John Lutz, doing business as John Lutz & Company. From a judgment for defendant, plaintiffs appeal. Affirmed.

Collins, Barker & Britton, Wm. F. Fahey, and Carl Otto, all of St. Louis, for appellants. George Eigel, of St. Louis, for respondent.

WALKER, J.

Appellants and respondent are separately engaged in the mercantile business in the city of St. Louis, under the firm names set forth above. On the 16th day of August, 1911, one Patrick Hannigan was in the employ of the respondent. Prior thereto he became indebted to appellants, and, to secure the payment of such indebtedness on the date above mentioned gave appellants an assignment of all money or wages due or to become due to him from respondent within a period of six months from the date of the execution of said assignment. No money or wages were due to him from respondent at said date. Appellants, upon the execution of said assignment, notified respondent of same, who five days thereafter returned the notice, stating, in effect, in his reply that he would ignore same as in violation of the statute prohibiting the assignment of unearned wages, and that he theretofore had paid Hannigan the wages due him. No further communication was had between the appellants and respondent in regard to this matter. On the 23d day of September, 1911, appellants brought suit against respondent to recover the amount of Hannigan's debt to them. The case was tried upon an agreed statement of facts, the material portions of which we have set forth above. The trial court rendered judgment for the defendant. Plaintiffs filed a motion for a new trial, in which, among other averments purely formal, they allege that: "The court erred in finding, as a matter of law, that the act of the General Assembly of Missouri 1911 (Session Acts 1911, p. 143), relating to contracts and promises, and providing that all assignments of wages, salaries, and earnings not earned at the time the assignment is made, shall be null and void, is not in violation of the fourteenth amendment of the Constitution of the United States, and invalid because thereof. The court erred in finding, as a matter of law, that said act is not in violation of section 4 of article 2 of the Constitution of Missouri, and is not invalid for that reason. The court erred in finding, as a matter of law, that said act is not in violation of section 30 of article 2 of the Constitution of Missouri, and is not invalid for that reason. The court erred in finding, as a matter of law, that said act is not in violation of section 28, art. 4, of the Constitution of Missouri, and is not invalid for that reason." Upon the overruling of this motion, an appeal was applied for and granted to this court.

Omitting the address and signature, the notice given by the appellants to respondent is as follows: "You are hereby notified that Patrick Hannigan did sell and assign, transfer, and set over to the undersigned, all money and wages due or to become due from you to the said Patrick Hannigan in accordance with the terms of a certain written, printed instrument, which will be shown you on application. There is now due us from the said Patrick Hannigan the sum of twenty-two dollars and fifty cents ($22.50). You will therefore, either pay all of the said wages to the undersigned or retain out of any money or funds now due, or to become due from you to the said Patrick Hannigan, sufficient of said money or funds, to satisfy the amount to be paid under the terms of said written, printed instrument, and you will pay such over to the undersigned. St. Louis, Mo., August 16, 1911. [Signed.]"

The statute is in the following language: "All assignment[s] of wages, salaries or earnings must be in writing, with the correct date of the assignment and the amount assigned and the name or names of the party or parties owing the wages, salaries and earnings so assigned; and all assignments of wages, salaries and earnings, not earned at the time the assignment is made, shall be null and void." Approved April 7, 1911, Laws 1911, p. 143.

I. Notice of Assignment. We question the sufficiency of the notice of the assignment. The statute is mandatory in its terms, and its express purpose is to limit the right of creditors and the power of debtors in the assignment of wages, salaries, and earnings. The notice therefore should have been drawn in strict conformity with the statute, in that it should have stated the date of the assignment and have set forth its purport. This is true regardless of the validity of the latter part of the statute of which appellants complain, and which is not involved in the question of notice. The appellants were seeking to bind respondent for the debt of another. Their notice should have informed him of all the facts necessary to have enabled him to determine the extent to which he was sought to be bound, instead of referring him to a "certain written, printed instrument," which appellants with ironic generosity proposed would be "shown him on application."

II. Is the Assignment a Property Right? The construction of the statute, in its relation to the constitutional provisions which it is claimed to violate, will suffice under appellants' contention to dispose of this case; but we are inclined to doubt the correctness of the conclusion reached in cases wherein it is held that such assignments are valid as constituting property rights. This we regard as a fallacy. It may be admitted that the term "property" includes everything which is the subject of ownership, corporeal or incorporeal, tangible or intangible, visible or invisible. 32 Cyc. p. 648, and cases. That no corporeal, tangible, or visible property right exists in cases involving the assignment of unearned wages, is beyond question. These classes, therefore, may be dismissed from the discussion, leaving for our consideration their antitheses, viz., incorporeal, intangible, and invisible rights, to determine whether the term property rights may with propriety be employed as a basis for the right to assign unearned wages. An incorporeal property right is one issuing out of a thing corporate, real or personal, or concerning, or annexed to, or exercisable within the same. 2 Black. Com. 20; 32 Cyc. 659; Whitlock v. Greacen, 48 N. J. Eq. 359, 360, 21 Atl. 944.

The enumeration of these classes of rights, recognized by the ancient English law, is not applicable here on account of the nonexistence in this country of several of same. We still have, however, annuities (3 Kent, Comm. 460), rights of common (Smith v. Floyd, 18 Barb. [N. Y.] 552, 557; West Univ. v. Robinson, 12 Serg. & R. [Pa.] 29, 32; 8 Cyc. 346), easements (Mackey v. Harmon, 34 Minn. 168, 172, 24 N. W. 702; McMillian v. Lauer [Sup.] 24 N. Y. Supp. 951, 953; Clawson v. Wallace, 16 Utah, 300, 307, 52 Pac. 9), franchises of corporations (Gibbs v. Drew, 16 Fla. 147, 149, 26 Am. Rep. 700; 19 Cyc. 1451), rents (Brown v. Brown, 33 N. J. Eq. 650, 659; Van Wicklen v. Paulson, 14 Barb. [N. Y.] 654, 655; 3 Kent Comm. 460), and patent rights (Com. v. Petty, 96 Ky. 452, 29 S. W. 291, 29 L. R. A. 786).

Illustrations of intangible or invisible rights in property are to be found in copyrights, trade...