Hubbard v. Bibb Brokerage Co

• Decision Date: 15 May 1931
• Docket Number: No. 20166.,20166.
• Parties: HUBBARD v. BIBB BROKERAGE CO.
• Court: Georgia Court of Appeals

44 Ga.App. 1

160 S.E. 639

HUBBARD

v.BIBB BROKERAGE CO.

No. 20166.

Court of Appeals of Georgia,

Division No. 2.

May 15, 1931.

Rehearing Denied Oct. 7, 1931.

Syllabus by the Court.

In a suit by the assignee of a chose in action against the assignor, to enforce a right predicated upon the assignor's collection of the debt and failure to account to the assignee, an amendment to the petition correcting a mere misdescription of the assignment does not set out a new cause of action, as where, in the allegations of the petition and the exhibit attached, it was alleged that the assignment was of wages earned by the assignor while in the employ of Southern Railway Company, an amendment alleging that the assignment was of wages earned by the assignor while in the employ of Georgia Southern & Florida Railway Company, does not set out a new cause of action, and was properly allowed.

Syllabus by the Court.

Property inaccurately described in a written assignment will pass under the assignment if the description, when taken in connection with the circumstances sur rounding the transaction, is sufficient to indicate the property assigned. A written assignment of the assignor's wages earned during a stated period while working in a designated capacity for a designated employer is an assignment of wages earned by the assignor during the same period while in the employ of the same employer but while working in a different capacity, where it appears that the only wages earned by the assignor during that period were earned while working for the employer named in the assignment, as where the assignment designates the wages earned as having been earned by the assignor while in the employ of the Georgia Southern & Florida Railway Company during a certain period of time as a fireman, whereas during that period the only wages earned by the assignor were in the employ of the same employer while working in the capacity of a brake-man only.

Syllabus by the Court.

Although in Jackson v. Bloodworth, 41 Ga. App. 216, 152 S. E. 289, it was held that a series of successive assignments of the assignor's wages, for which the assignee paid only one consideration upon the execution of the first assignment, where the assignor always, with the assignee's acquiescence, collected the wages assigned and converted them to his own use, and settled with the assignee by the execution of a new assignment and the payment of a sum of money, constituted a transaction in which the consideration paid upon the first assignment was a loan of money to the assignor, yet, where the indebtedness arising under such a series of assignments had been discharged, and the assignor owed the assignee nothing, a subsequent assignment of other wages by the assignor to the assignee, for which the assignee actually paid the assignor the consideration therefor, where this transaction was entirely separate from and in no way connected with the first transaction, and the settlement of the first transaction was not made under any promise or expectation from the assignee that he would make the assignor the advance of money on the last assignment, the inference is at least authorized that the last assignment, standing alone, constituted a bona fide sale of the assignor's salary, and did not, together with the previous assignments, constitute a loan of money, ora scheme or device to evade the laws against usury.

Syllabus by the Court.

An assignment by a creditor of a part of the debt represented in a chose in action, where the assignment is not assented to by the debtor, conveys to the assignee only an equitable title in the chose in action to the extent of a portion of the debt assigned, and thereby reserves in the assignor the legal title to the entire chose in action. The assignment is equivalent to a declaration of trust by the assignor as trustee for the benefit of the assignee as the cestui que trust, with a duty resting upon the assignor, as trustee, to collect from the debtor the portion of the debt assigned, and pay over the money to the assignee as the cestui que trust. Where the assignor, as trustee, has collected the debt, he has discharged the duties of the trust, and nothing remains to be done by him but to pay over the money immediately to the assignee as the cestui que trust. The trust thereupon immediately, by the Georgia statute of uses (which applies to personal property), becomes executed, and the legal title to the money collected by the assignor becomes vested in the assignee who, upon the legal title, can recover at law from the assignor for a breach of a contractual duty to pay over the money to the assignee, or for a tortious conversion by the assignor of the assignee's property. The decision in the case of Etheredge v. Wilson, 41 Ga. App. 432, 153 S. E. 230, which was by. only a majority of the court, and is inconsistent with the Georgia statute of uses, and decisions of the Supreme Court following the statute, is not binding on this court as authority, and is not followed. The decisions in Glaseo v. Cooper, 17 Ga. App. 690, 87 S. E. 1095, and Stovall v. Coker, 18 Ga. App. 126, 88 S. E. 907, are reviewed and distinguished.

Syllabus by the Court.

The failure of the assignor to pay over to the assignee the money thus collected, although no demand has been made upon him, constitutes a misappropriation of the money, and thereby creates a debt by the assignor while acting in a fiduciary capacity which is exempt from discharge in bankruptcy under section 17 of the National Bankruptcy Act of 1S98 as amended (11 USCA § 35).

Syllabus by the Court.

The verdict and judgment for the plaintiff were authorized.

On Motion for Rehearing.

Syllabus by the Court.

Where it does not appear from the evidence that the plaintiff had obtained the license required by law of lenders of money and buyers of salaries or wages, a verdict and judgment for the plaintiff are not without evidence to support them, and are not contrary to law by reason of such failure, where the question as to whether or not the plaintiff had obtained such license was not put in issue either by an allegation in the petition that the plaintiff had obtained the required license or by a plea alleging the plaintiff's failure to obtain the license.

Error from Superior Court, Bibb County; Malcolm D. Jones, Judge.

Suit by the Bibb Brokerage Company against Lofton Hubbard. Judgment was rendered for plaintiff in the municipal court, defendant's motion for new trial was overruled, and his petition for certiorari was overruled by the judge of the superior court, and defendant brings error.

Affirmed.

See, also, 172 Ga. 520, 157 S. E. 649.

Out of deference to the decision rendered by the first division of this court in Etheredge v. Wilson, 41 Ga. App. 432, 153 S. E. 230, with which we of the second division were not prepared to agree, certain questions" there dealt with were in the present case and in Hood v. Bibb Brokerage Co., certified to the Supreme Court on October 3, 1930, and that court on March 13, 1931, refused to answer them. See Hubbard v. Bibb Brokerage Co., and Hood v. Bibb Brokerage Co., 172 Ga. 520, 15T S. E. 649. The questions presented are now before this court for determination.

This case arises upon an exception to the judgment of the superior court overruling a petition for certiorari brought to review a judgment of the municipal court of Macon. The following appears from the petition for certiorari and the answer thereto: Bibb Brokerage Corporation brought suit in the municipal court of Macon against Lofton Hubbard, and in the petition alleged that, on July 3, 1928 the defendant, by a "bill of sale and assignment * * * sold, transferred and assigned his title and right of possession to the stipulated amount of his salary or wages described in a bill of sale and assignment, " by which the defendant, for value received, sold to the plaintiff "an undivided interest, " amounting to $47 in the defendant's "account for wages or salary already" earned by him from the 1st day of June 1928 to the 3rd day of July 1928, in the capacity of fireman, and due him by Southern Railway Company; that, by virtue of this assignment, the title to the money assigned vested in the plaintiff; that the money thus assigned was afterwards, on July 15, 1928, collected from the Southern Railway by the defendant, and converted to his own use and benefit, and that he had retained possession thereof and had refused to turn it over to the plaintiff to whom it belonged; that the collection and conversion of this money by the defendant constituted a fraud upon the plaintiff, to the plaintiff's damage in the sum of $47, for which the plaintiff prayed judgment.

By an amendment afterwards allowed, over objection by the defendant that it constituted a new cause of action, the plaintiff struck the allegations that the interest in the salary or wages assigned was due the defendant by the Southern Railway Company, and alleged that the wages or salary assigned was due the defendant by the Georgia, Southern & Florida Railway Company, and was collected by the defendant from the last-named company.

The defendant by plea admitted an indebtedness to the plaintiff in the amount sued for, but alleged that the plaintiff had been adjudicated a bankrupt, and would in due time obtain a discharge in bankruptcy which would discharge him from the indebtedness sued for, and prayed a stay of the proceedings. The defendant further pleaded that the alleged assignment had been obtained from him by the fraud of the plaintiff in particulars alleged, and was therefore void; that the transaction out of which the alleged assignment arose was one by which a loan of $20, which was afterwards increased to $40, was made by the plaintiff to the defendant, and upon it the plaintiff had, from time to time, semimonthly, collected from the defendant $4 on the principal sum of $20 and $7 on the principal sum of $40; that this transaction, under the guise of successive salary assignments...