Jake Strickland Lumber Co. v. Rheinhart
| Decision Date | 12 November 1917 |
| Docket Number | 19636 |
| Citation | 76 So. 643,115 Miss. 749 |
| Court | Mississippi Supreme Court |
| Parties | JAKE STRICKLAND LUMBER CO. v. RHEINHART |
APPEAL from the circuit court of Coahoma county, HON. W. A. ALCORN Judge.
Suit by S. Rhinehart against C. A. Carroll and others and the Jake Strickland Lumber Company. From the judgment rendered, the Lumber Company appeals.
The facts are fully stated in the opinion of the court.
Judgment reversed and cause remanded.
T. B Watkins and Robert Powell, for appellant.
We maintain that the funds paid into court should have been awarded to appellant to the exclusion of all other parties. This statement is based on the reason that appellant's assignment being first in time, was, therefore, prior in right, and appellant as payee of the order after date September 11, 1914, drawn on the architects, to be paid out of the funds of the Carroll job when completed, was entitled to the full amount of the funds of the Carroll job paid into the hands of the clerk to the exclusion of appellees.
A person who contracts to erect a building for another has the right to assign the money due or to become due to him from the owner with or without his consent. Augustine Spangler et al. v. Stiles-Tull Lumber Co., 94 Miss. 780. Reinhart, Ellis, Waters and Shelton Hardware Company, who were but various materialmen, the first two of whom alone served on October 30, 1914, and November 2, 1914, respectively, '"stop notices" under section 3074 of the Code, the notices so given being served more than a month subsequent to the execution and delivery by the contractor of the assignment to appellant.
The court below, by its final judgment, distributed the two hundred and ninety-seven dollars and sixty cents paid into court as follows: Reinhart and Ellis were paid in full, and the balance of said fund was distributed proportionately to appellant, Joe Waters, and J. R. Shelton Hardware Company. We say the court should have awarded all of the two hundred and ninety-seven dollars and sixty cents to appellant on the balance of five hundred dollars due appellant on its assignment.
To intelligently discuss this, the first question presented is: Was the order drawn by the contractor on the Architects in favor of appellant "to be paid out of Carroll job when complete" an assignment. We contend that it was. 5 Corpus. Juris., 910; 5 Corpus. Juris., pages 911 and 912; Spengler v. Stiles, 48 So. 966; Moody v. Kyle, 34 Miss. 506.
We maintain that this case forever sets at rest the doctrine for which we contend in this appeal. However, our court in a more recent decision has reiterated this doctrine and, by its approval of this language used in Stevens v. Ogden, 130 New York, 182, 29 Northeastern 229: "The order drawn by the contractor on the owner in favor of E. H. Ogden & Company for nine hundred and nine dollars and ninety-four cents, being by its terms payable out of a particular fund specified in the order, operated as an assignment pro tanto of that fund," again enunciates the rule for which we now contend. (See the language of Chief Justice WHITFIELD, in case of Spengler v. Stiles, 48 So. 966, from which case we will hereafter quote at length.
The authorities cited, we respectfully maintain, uphold our contention that the order was an assignment. For the court's convenience, we now list the authorities cited on the above proposition advanced by us. A person who contracts to erect a building for another has the right to assign the money due or to become due to him with or without the consent of the owner. Spengler et al. v. Style-Tull Lbr. Co., 94 Miss. 780; 5 Corpus. Juris., 906, 901, 911, 912, 922, 923, 924, 925 and 926; Moody v. Kyle, 34 Miss. 506; Stevens v. Ogden, 130 N.Y. 182, 29 Northeastern, 229; and authorities therein cited.
Assuming that the court will share our opinion that the order in question was an assignment, we now ask: What was its legal effect? Many cases might be cited to answer this question, but it has been so positively answered by our own supreme court that we think a citation of authorities other than the cases of our own Mississippi court would prove both burdensome and useless and, therefore content ourselves with the Mississippi decisions. These decisions undoubtedly and unmistakably uphold this our contention: That the assignment in question, being prior in time to the service of the stop notices served by Reinhart and Ellis on the owner Carroll, gave to appellant the prior right to the two hundred and ninety-seven dollars and sixty cents paid into court by the owner to the exclusion of the materialmen, appellees here. The Mississippi cases so holding are: Herrin v. Warren & Mobley, 61 Miss. 509; Peck-Hammond Co. v. Williams, 77 Miss. 824, 27 So. 995; Spengler v. Stiles, 48 So. 966; Herrin v. Warren & Mobley, 61 Miss. 509.
We therefore, respectfully ask that this court award to appellant the full amount of the fund of two hundred and ninety-seven dollars and sixty cents paid into the hands of the clerk in the court below.
R. L. Burns and Dan Brewer, for appellee.
Appellees respectfully submit that a careful examination of the record will disclose that exact justice was done by the entry of the trial court of the judgment below.
We are constrained to believe that appellant the Jake Strickland Lumber Company does not seriously consider its appeal, and we feel that when the court has carefully examined the record, the judgment below will be affirmed, as we submit most respectfully it should be.
C. A. Carroll had a residence erected in Clarksdale, Miss., under a contract with one Ward for a fixed price. Ward secured material from various parties for use in erecting said building. Before the building was completed Ward executed an assignment to the Jake Strickland Lumber Company for one thousand dollars, to be paid out of the proceeds from Carroll for the building. This assignment was not brought to the attention of Carroll, nor accepted by Carroll, but was presented to the architect superintending the construction of the building, and the architect would only allow five hundred dollars of said assignment, stating that he did not know how much it would take to complete the building.
S Rheinhart filed an account in the court of a justice of the peace for one hundred and twelve dollars and fifty cents for material furnished in the building, and made Carroll and wife, the Bank of Clarksdale, the Clarksdale Building & Loan Association, Jake Strickland Lumber Company, and H. L. Ward parties defendant. In this petition in the justice's court he alleged that the Jake Strickland Lumber Company and H. L. Ward contracted with Carroll and wife for said building, and that they had constructed the building as contracted, and that the material furnished by Rheinhart went into said building. A like suit was filed by W. R. Ellis for fifty-six dollars and six cents, and the same parties were made defendants as in the other suit. Carroll and wife filed their answer, stating that two hundred and ninety-seven dollars remained due and unpaid on said work and no more, and...
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