McDaniel v. Maxwell

• Decision Date: 02 November 1891
• Citation: 27 P. 952,21 Or. 202
• Parties: MCDANIEL v. MAXWELL et al.
• Court: Oregon Supreme Court

27 P. 952

21 Or. 202

MCDANIEL v. MAXWELL et al.

Supreme Court of Oregon

November 2, 1891

Appeal from circuit court, Multnomah county; E.D. SHATTUCK, Judge.

Garnishee proceedings, in the action of T.S. McDaniel against E.J Maxwell, by McDaniel against the Commercial National Bank garnishee. Judgment for garnishee, and plaintiff appeals. Affirmed.

STATEMENT BY THE COURT. On February 28, 1890, the defendant E.J Maxwell, who was a contractor for the improvement of certain streets in Portland, executed and delivered to the garnishee the Commercial National Bank, an order on the auditor of the city of Portland, directing him to deliver to said bank any and all warrants drawn in his favor on account of said street improvement, and authorizing the bank to receipt for and indorse the warrants, in his name. Before the bank received any of the warrants from the city of Portland, Maxwell, for a valuable consideration, executed and delivered to the payees named therein the following orders: "Portland, Oregon, June 28, 1890. Mr. R.L. Durham, Cashier of the Com. National Bank, Portland, Or.-- Dear Sir: Please pay to Wah Sing Company, on the 10th day of August, 1890, out of any money that may come into your hands for me, the amount shown by his book to be due for work performed during the month of July, under an agreement between said Wah Sing Company and myself. Yours, etc., E.J. MAXWELL." "The time of Chinese furnished by the Wah Sing Company, grading for July, is 391.6 days at $1 1/4 per day, and 20 1/2 days at $2 per day, equals $531.37. E.J. MAXWELL. WILLIAM PETERS, Foreman." "July 5, 1890. Mr. R.L. Durham, Cashier Commercial National Bank: The full time for June for China labor furnished by Wah Sing Company is 22 days, equal $22.25, (twenty-two and 25-100 dollars,) which please pay on the 10th to Wah Sing Company, and charge to my account. E.J. MAXWELL." "Portland, Oregon, August 19, 1890. Commercial National Bank, Portland, Oregon--Dear Sirs: Please retain out of the warrants coming into your hands one warrant amounting to not exceeding $300, which you will please deliver to Mr. R. Weeks, on account of Weeks & Churchill. E.J. MAXWELL." That afterwards, and before the warrants from the city of Portland were received by the garnishee, the orders above mentioned were presented to the garnishee, and by it placed on file, under a parol agreement between the defendant, Maxwell, the payees thereof, and the garnishee, that the garnishee, after reimbursing itself for advances made to Maxwell out of the proceeds of said city warrants when collected, should apply the remainder of the proceeds, in payment and satisfaction of the orders, in the order in which they were presented, unless restrained by legal proceedings. That on October 3, 1890, the auditor of the city of Portland delivered to the garnishee the warrants in Maxwell's favor for $1,669.59, but, before any application of the proceeds had been made, the garnishee process in the action of McDaniel v. Maxwell was served upon it. The court below held that these orders constitute an assignment and appropriation of so much of the funds as should be collected on the warrants of the city in favor of Maxwell as would be necessary to pay and satisfy the same, and entered a judgment in favor of the garnishee for its costs and disbursements, from which this appeal is taken.

J.J Johnson, for appellant.

Sears & Beach, for respondent.

BEAN J.

The only question necessary for us to consider on this appeal is whether the orders from Maxwell on the garnishee, in favor of Wah Sing Company and R. Weeks, under the facts of this case operated as an assignment or appropriation pro tanto of the funds to be collected by the garnishee on the warrants assigned to it by Maxwell. It is universally recognized that, at law, a part only of an entire demand cannot be assigned so as to enable the assignee to bring an action upon it without the consent of the debtor, for the sufficient reason that it would subject the debtor to a multiplicity of actions at the instance of each assignee of a separate portion of the debt, and thereby subject him to many embarrassments and responsibilities not contemplated in his original contract. He has a right to stand upon the singleness of his contract, and decline to recognize any assignments by which it may be separated into distinct portions. When he undertakes to pay an entire sum to his creditor, it is no part of his contract that he shall pay it in fractions to other parties. His obligation is single, and he should not be harassed with different actions to recover parts of the one demand. In equity, no such consequences could result. If parts of a single demand are assigned to different persons, the rights of all the assignees can be settled in one suit. In a suit by one assignee, not only the debtor and assignor, but all other assignees or claimants to any part of the fund, can be made parties to the suit, so that one decree may...