Millington v. Laurer

• Decision Date: 14 October 1893
• Parties: MILLINGTON v. LAURER.
• Court: Iowa Supreme Court

89 Iowa 322

56 N.W. 533

MILLINGTON

v.LAURER.

Supreme Court of Iowa.

Oct. 14, 1893.

Appeal from district court, Buchanan county; D. J. Lenehan, Judge.

Action to recover for the painting of two pictures. There was a trial by the court, and a judgment in favor of plaintiff. The defendant appeals.Woodward & Cook and E. E. Hasner, for appellant.

H. W. Holman, for appellee.

ROBINSON, C. J.

In March, April, and May, 1891, F. C. Merrill painted for the defendant two pictures at the agreed price of $100. On the 9th day of June, 1891, Merrill assigned his account for the painting to plaintiff, a nonresident of this state. In the year 1873 one Mason recovered in circuit court of Buchanan county a judgment against Merrill for the sum of $142.10 and interest thereon at 10 per cent. per annum and $6.60 costs. That judgment is unpaid. It was assigned to James Dalton, and by him assigned to defendant in December, 1886. The defendant admits that Merrill painted for him the pictures for the price stated, but claims that by agreement between them the price was to be applied in paying the judgment, and avers that he has always been, and is now, ready to so apply it. He also pleads the judgment by way of counterclaim, and alleges that he owned it at the time the claim for the painting was assigned to the plaintiff. The plaintiff denies that there was any agreement to apply the price of the painting on the judgment, and alleges that the price was the personal earnings of Merrill, exempt to him from execution, for the reason that he was the head of a family and a resident of this state when the painting was done, and that the claim therefor was assigned to plaintiff within 90 days from the time it was earned. The district court rendered judgment in favor of plaintiff for $100, with interest and costs.

1. Section 2546 of the Code is as follows: “In case of the assignment of a thing in action, the action by the assignee shall be without prejudice to any counterclaim, defense or cause of action whether matured or not, if matured when plead, existing in favor of the defendant and against the assignment.” Under this provision, any defense which defendant had to the claim in controversy while it was owned by Merrill is available against the plaintiff. Merrill denied the alleged agreement with defendant to apply the price of the pictures on the judgment, and the district court was authorized to find that no agreement of that kind was made. We are required to determine whether the evidence justified the district court in finding that the judgment against Merrill, owned by defendant, was not a defense to the claim in suit when it was assigned to plaintiff. Section 3074 of the Code provides that the earnings of a debtor, who is a resident of this state and the head of a family, “for his personal services, or those of his family, at any time within ninety days next preceding the levy, are * * * exempt from execution and attachment.” Merrill was a resident of this state and the head of a family when the pictures were painted, and also when the claim for their price was assigned. It is said by appellant that the price of the pictures was not due for the personal services of Merrill, because his agreement required him to furnish the canvas, paints, and other materials which were used in producing the pictures. The evidence shows that the cost of all the materials used for that purpose was about $1.50, or little more than nominal. It was so insignificant that we would not interfere with the action of the district court in holding in effect that for the purposes of this case the amount due for the pictures was due for the personal services of Merrill. The statute does not distinguish between the earnings of an artist, a mechanic, or a common laborer, but exempts them alike, when other conditions essential to the exemption exist. McCoy v. Cornell, 40 Iowa, 458. Since the amount in controversy was due for the personal services of Merrill, he had the right to transfer the claim for it, and the exemption from seizure for the payment of his debts passed with it to his assignee. Waugh v. Bridgeford, 69 Iowa, 335, 28 N. W. Rep. 626;Pearson v. Quist, 79 Iowa, 54, 44 N. W. Rep. 217. The fact that the assignee was a nonresident of this state is wholly immaterial. The exemption was for the benefit of the debtor's family, and to hold, when exempt property is transferred, it becomes subject, in the hands of the assignee, to the payment of the assignor's debts, would in many cases destroy the value of the exemption by preventing the family of the debtor from deriving any benefit from it. The district court was authorized to find that the assignment in this case was made within 90 days from the time when the money was earned.

2. The remaining question to be determined, and the one of chief importance, is whether the judgment owned by defendant constituted a defense to the claim of Merrill at the time it was assigned to plaintiff. If it did, the plaintiff took the claim subject to that defense,...