Pollard v. Pollard

• Decision Date: 26 July 1895
• Citation: 39 A. 329,68 N.H. 356
• Parties: POLLARD v. POLLARD.
• Court: New Hampshire Supreme Court

39 A. 329

68 N.H. 356

POLLARD

v. POLLARD.

Supreme Court of New Hampshire. Sullivan.

July 26, 1895.

Exceptions from Sullivan county court.

Attachment by Kimball Pollard against Rolon D. Pollard, the Lempster School District, trustee, and Mabel L. Nichols, claimant. The trustee was discharged, and plaintiff brings exceptions. Overruled.

In 1894 the defendant and Raymond M. Pollard jointly contracted to erect a school house for the Lempster school district, agreeing between themselves to share the profits and losses of the contract equally. The district acted by its building committee, consisting of three persons, of whom Arthur L. Benway was one. May 3, 1894, the defendant gave the claimant an order as follows: "Lempster, May 3d, 1894. Mr. Arthur L. Benway: Please pay Mrs. Mabel L. Nichols eighty-two dollars, and charge the same to my account, it being for forty-one weeks' board." An acceptance was indorsed upon the order in these words: "May 3d, 1894. I hereby accept the within order. A. L. Benway, Committee." Raymond was present when the acceptance was made, and orally consented to the same. The order being regarded as an equitable assignment, the trustee was discharged, subject to the plaintiff's exception.

George R. Brown, for plaintiff.

Hosea W. Parker, for claimant.

CHASE, J. The order was, in effect, an equitable assignment, by Rolon D. and Raymond M. Pollard to the claimant, of a part of their claim against the Lempster school district. Conway v. Cutting, 51 N. H. 407; Garland v. Harrington, Id. 409. Although it is addressed to Benway personally, and is signed by Rolon only, and directs the charging of the sum mentioned to his account, the circumstances show that all parties understood it referred to the money that would become due to the Pollards jointly from the district upon the completion of their contract. Benway was one of the three members of the district's building committee, and it appears from the form of his acceptance of the order that he acted in that capacity. So far as appears, he was not personally indebted to the Pollards, or either of them. Raymond's oral consent to the order was a valid transfer of his interest in the subject of the assignment Thompson v. Emery, 27 N. H. 269; Brewer v. Franklin Mills, 42 N. H. 292; Jordan v. Gillen, 44 N. H. 424, 427; Pierce v. Insurance Co., 50 N. H. 297; Gage v. Dow, 59 N. H. 383; Brown v. Mansur, 64 N. H. 39, 5 Atl. 768. The question whether Benway was authorized to bind the...