Johnson County v. Bryson

• Decision Date: 24 October 1887
• Citation: 27 Mo.App. 341
• Parties: JOHNSON COUNTY v. JAMES V. BRYSON, Interpleader, Defendant in Error, and MICHAEL GUIHEN, Interpleader, Plaintiff in Error.
• Court: Kansas Court of Appeals

27 Mo.App. 341

JOHNSON COUNTY v. JAMES V. BRYSON, Interpleader, Defendant in Error, and MICHAEL GUIHEN, Interpleader, Plaintiff in Error.

Court of Appeals of Missouri, Kansas City.

October 24, 1887

ERROR to Johnson Circuit Court, HON. NOAH M. GIVAN, Judge.

Reversed, with directions.

The case and facts are stated in the opinion of the court.

SAMUEL P. SPARKS, for the plaintiff in error.

I. The agreement between Keene and Guihen was an equitable assignment, pro tanto, of the proceeds of the contract between Keene and the county, as the material furnished amounted to. In order to establish it, it was not necessary that it should have been in express terms; nor in writing. Smith v. Sterritt, 24 Mo. 260; 2 Story's Eq. Jur., sect. 1047; Dillon v. Barnard, 1 Holmes (U. S. Circt. Ct.) 386; In re Strand Music Hall Co., 3 De Gex, J. & S. 147; Williams v Ingersoll, 89 N.Y. 508; Christmas v. Russell, 14 Wall. (U. S.) 59; Brokaw v. Brokaw's Ex'r, 3 Cent. Rep. 365. After the contract had been performed by Keene, the assignment became operative and vested in Guihen, to the extent of the debt due him under his contract with Guihen. Wright v. Bircher, 72 Mo. 179; Rutherford v. Steward, 79 Mo. 216; Frank v Playter, 73 Mo. 672.

II. Future wages, to be earned under a present contract imparting to them a potential existence, may be assigned, although the contract may be indefinite, both as to the time of performance and the amount. Wade v. Bessy, 24 Am. Law Reg. 139; 2 Story's Eq. Jur., sect. 1040.

III. But conceding that a suit could not be maintained in equity even on an assignment of part of a debt, without the consent of the debtor, no such obstacle presents itself in this case; for the debtor not only makes no objection, but asks that the rights of the respective assignees be determined, thereby consenting to pay to whomsoever it may in equity belong. James v. City of Newton, 2 N.E. 820; s. c., 23 Cent. Law Jour. 489, and citations; Supt. Pub. Schools v. Heath, 15 N.J.Eq. 22; Fourth Nat. Bank v. Noonan, 14 Mo.App. 243; s. c., 88 Mo. 372.

IV. Prior to the assignment to Bryson by Keene, Guihen had notified the county, through its agent, the county court, while in open session, of his rights to the sum of $110.50 of the fund; again, at their next meeting, he notified them in writing, and it does not appear when, if ever, Bryson notified the county of the assignment to him. The equity even of a subsequent assignee of choses in action, who first gives notice to the debtor, is superior to that of a prior assignee. A fortiori of a prior assignment. Fell v. McManus, 1 Cent. Rep. (N. Y.) 678; Murdock v. Finney, 21 Mo. 138; 8 Neb. 214; 13 Minn. 165; 2 Story's Eq. Jur., sects. 1047-1057. Where there is no notice given by either of the assignees then the rule, qui prior est in tempore potior in jure, prevails. Murdock v. Finney, supra.

V. The doctrine contended for in this case does not in the least conflict with the rule laid down in 63 Mo. 410; 73 Mo. 22; 76 Mo. 488; holding that there cannot be an assignment of part of a demand without the consent of the debtor; for the debtor, by interpleader, has consented to the assignment. Beardslee v. Morgner, 4 Mo.App. 139; Fourth Nat. Bank v. Noonan, 14 Mo.App. 243; S. C., 88 Mo. 372.

VI. Ever since the revision of the statutes in 1865, which went into effect August, 1866, it has not been necessary to verify pleadings, whether in law or equity, except in the cases therein enumerated. (a ) But if such verifications had been required, it was no part of the pleading, and where by statute a pleading is required to be verified by affidavit, and is not so verified, and the opposite party accepts it without objection on that account, and takes issue of law or fact upon it, the objection will be considered as waived. Schwartz v. Oppold, 74 N.Y. 307; Gilmore v. Hempstead, How. Prac. 153; Dawson v. Vaughan, 42 Ind. 395; Pudney v. Burkhart, 62 Ind. 179; Butler v. Church, 14 Bush (Ky.) 540; Hughes v. Feeter, 18 Ia. 142; Harris v. Ray, 15 Ben. Monroe (Ky.) 630; Gilkeson v. Knight, 71 Mo. 403; 8 Neb. 214; 13 Minn. 165. It is too late to raise the objection for the first time in the appellate court. Payne v. Flournoy, 20 Ark. 500.

HENRY NEILL and S. T. WHITE, for the defendant in error.

I. This court has no jurisdiction to grant the writ of error, where the county is a party to the action, under section 12, article 6, of the constitution of Missouri, as amended in 1884.

II. There is no evidence tending to show that Keene made any legal or equitable assignment to Guihen of any claim or any part of any claim that he had, or might have, against the county. (a ) According to Guihen's statement, the only conversation with Keene respecting the manner of payment was before the county owed Keene anything upon his contract, and before Keene had finally contracted with Guihen to furnish the material, and before Guihen had any claim or right against Keene for any sum whatever, consequently before there was anything in existence to assign, and before there was any debt or liability to be secured or paid by an assignment. (b ) The only proof offered was that there was an oral promise made by Keene to Guihen, that he could get his money from the county in the event of his furnishing the material, and the language used does not purport to be the assignment of any right that Keene had or might have against the county. (c ) Guihen does not claim that he has an adjusted and liquidated sum due him from Keene, nor does he set forth any items of account in his pleadings or evidence so as to enable the court to fix the proper amount, if any, due him from Keene, nor does he give a statement of the quantity of rock furnished, or whether the same was accepted by Keene, nor does he set forth a contract with Keene for the kind of material he was to use, or allege or claim that what he did furnish was in accordance with his contract, nor state any fact upon which the trial court could adjudicate upon his said claim, and any attempted assignment of an undetermined and undeterminable balance or amount could not have been allowed by the trial court. (d ) In view of the fact that no settlement appears to have been made between Keene and Guihen, or the amount of Guihen's claim in any manner determined, Keene became a necessary party to this action for a final adjudication thereof. Fulkerson v. Davenport, 70 Mo. 541.

III. The interpleader, Guihen, has no standing in court for the reason that he did not verify his interplea, as required by the equity practice and the laws of this state.

IV. The amount that the county owed Keene was an undetermined and unliquidated sum at the time of the pretended transfer to Guihen, and said Guihen's claim for materials was, at the time, undetermined and unliquidated, and no assignment of Keene's claim could have been made by him. Burnett v. Crandall, 63 Mo. 410; Love v. Fairfield, 13 Mo. 300.

V. Guihen claims a lien on the fund owed by the county to Keene for the materials furnished for the abutments, and it is well settled in this state that he could have no lien on public works for material or labor, and had not sought for any lien under the statute; and this fund was not even subject to garnishment, much less a lien.

VI. There was no legal notice upon the county court that Guihen claimed any sum for the materials furnished, and the court made no record of such claim until long after Bryson became the sole owner, for full value, of the whole amount due Keene, as certified to by the road and bridge commissioner, as due the said Keene, and that said Bryson had no notice of any claim of Guihen until after he had purchased the account from Keene.

VII. The trial court had all the evidence and the witnesses before it, and on a full deliberation found in favor of Bryson and against appellant Guihen. It is now a well-established rule in all the appellate courts of this state, that where a trial court has made a finding of facts, the appellate court will not disturb the finding, unless the trial court has committed a manifest error, either in the finding of the facts or in the theory of the trial of the case. Hodges v. Black, 76 Mo. 537; Sharpe v. McPike, 62 Mo. 300; Snell v. Harrison, 83 Mo. 651. And Guihen has not pointed out in his special assignment of errors any reason why the finding of the court trying the case should be interfered with in this court.

VIII. The record shows there is an appeal undisposed of in this cause in this court. (a ) If the appeal is pending, then this writ of error should be dismissed, and the record shows that to be the status of the case. ( b ) If this court takes judicial cognizance that said appeal has been before this court, and was submitted for final adjudication to the court, and was, after a hearing hereof, dismissed, then said action of this court was a final disposition of said cause, and this writ of error will not lie. Section 3776, Revised Statutes, as amended at p. 218, Session Acts, 1885, authorizes this court to render only the following form of judgments: " To award a new trial; to reverse or affirm the decision of the circuit court, or give such judgment as such court ought to have given, as shall seem agreeable to law." After final submission, the only authority this court has is to enter one of the above forms of judgment; and to dismiss an appeal is to affirm the judgment of the lower court.

ELLISON J.

One Keene contracted with Johnson county to erect abutments for an iron bridge which was to be built over one of the streams in that county. He claimed there was due him for this work $771.65. On November 24, 1885, he assigned, in writing, his claim to interpleader Bryson. Some time prior to this assignment, and before he had begun his work, he contracted...