Metcalf v. Kincaid

• Decision Date: 30 January 1893
• Citation: 54 N.W. 867,87 Iowa 443
• Parties: METCALF v. KINCAID ET AL.
• Court: Iowa Supreme Court

87 Iowa 443

54 N.W. 867

METCALF

v.KINCAID ET AL.

Supreme Court of Iowa.

Jan. 30, 1893.

Appeal from superior court of Council Bluffs; J. E. F. McGee, Judge.

Proceeding to hold the Union Pacific Railroad Company as garnishee. Judgment against garnishee, from which it appeals.Wright & Baldwin, for appellant.

Wheeler & West, for appellee.

KINNE, J.

1. Plaintiff, on December 31, 1889, brought his action against defendant Kincaid before a justice of the peace, in which action a writ of attachment was issued, under which the railway company was garnished. Notice of garnishment was served on the company December 31, 1889. Thereafter the company answered that prior to the garnishment, and on October 29, 1889, it accepted the following assignment: “Omaha, Oct. 29, 1889. Mr. E. Young, Auditor--Dear Sir: Please pay to Mr. J. J. Burns, Denver, Colo., my salary as foreman oil house at Omaha, during the months of October, November, and December, 1889, and January, February, March, and April, 1890, account of my indebtedness to Mr. Burns in the sum of five hundred dollars, ($500.00.) Yours, truly, J. W. Kincaid.” That Burns claimed and owned all the wages earned by Kincaid as employe of said company according to the tenor of said assignment. That ever since its date the garnishee had paid the wages earned for the months stated in said order to Burns, and on January 3, 1890, paid Burns, under said order, the wages earned by Kincaid. The justice entered judgment against the garnishee on its answers for $58.55. The garnishee sued out a writ of error to the superior court of the city of Council Bluffs, and the superior court affirmed the finding of the justice. At the proper time the garnishee caused a certificate to be executed and filed by the judge of said court certifying certain questions of law to this court for its determination. We need not set out the certificate. Objection is made thereto, but we think it sufficiently indicates the questions presented for our consideration. They involve: (1) The right of a person in the employ of another to assign future earnings, in the absence of a contract under which the wages are to be earned, so as to vest in the assignee all the right, title, and interest of the assignee to the same. (2) Whether, in case an existing contract is necessary to the validity of the assignment, there is any presumption that defendant was working under such a contract, or must the contract be pleaded and proved? (3) Does the instrument set out in law amount to an assignment, so as to vest in Burns the wages earned by Kincaid, to the exclusion of the attaching creditors?

2. The last question is first argued by counsel. It is insisted by plaintiff that, as the order was addressed to “E. Young, Auditor,” it would not bind the railway company, and that an acceptance of it by the garnishee would not, at least as against plaintiff, bind the company. True, the order is not directed to the railway company, nor, on its face, to Young as an official of the company; but it has often been held that no particular form of words need be used to constitute an assignment of a debt. All that is necessary is that the intent to effectuate an assignment shall clearly appear. That intent may appear from the writing itself, or it may be shown otherwise. Moore v. Lowrey, 25 Iowa, 338;McWilliams v. Webb, 32 Iowa, 577; 1 Amer. & Eng. Enc. Law, 834; Drake, Attachm. § 526. As has been said: “When the appropriation of the property is made by the assignor and accepted by the assignee, the particular form in which the thing is done is of little moment, and the assignment will be sustained.” Id. § 526. Now, it is clear from the assignment itself, and from the further fact that it has been accepted and in part acted upon, and the assignee has received in part the benefits sought to be conferred by the assignment, that the intention was to assign certain future earnings of Kincaid, which were to accrue from the railroad company to Burns. That all the parties so understood it is apparent from the fact that all of them have treated the order as directed in fact to the railroad company through its proper official. The fact that the order is informally drawn is of no importance in view of the effect given it by the parties and their manifest intent. The law is well settled that plaintiff can occupy no better position with respect to the fund in controversy than could defendant. Could defendant, after signing such an order, and after its acceptance by the real party to whom he intended to direct it, successfully maintain an action against the company, who had acted upon it, and paid out money on the faith of it? Surely not. The garnishee cannot, because of his garnishment, be placed in any more favorable or unfavorable position than defendant would be in if he was seeking to enforce his claim. Smith v. Clarke, 9 Iowa, 241; Fifield v. Wood, Id. 249; Huntington v. Risdon, 43 Iowa, 517;Victor v. Insurance Co., 33 Iowa, 210;Cox v. Russell, 44 Iowa, 556. Even a bill which has been accepted is good against the acceptor though there was no drawee named therein. Daniel, Neg. Inst. § 97. If, then, Kincaid's wages were in law assignable,--a question hereafter considered,--theorder, having been intended to assign them to Burns, and having been accepted and acted upon, is, though informal, effectual as an assignment.

3. The first question certified, in substance, is whether one can assign his future...