R. B. Tyler Co. v. Laurel Equipment Co

• Court: Mississippi Supreme Court
• Writing for the Court: Griffith, J.
• Citation: R. B. Tyler Co. v. Laurel Equipment Co, 192 So. 573, 187 Miss. 590 (Miss. 1940)
• Decision Date: 02 January 1940
• Docket Number: 33833
• Parties: R. B. TYLER CO. v. LAUREL EQUIPMENT CO

192 So. 573

187 Miss. 590

R. B. TYLER CO. v. LAUREL EQUIPMENT CO

No. 33833

Supreme Court of Mississippi, Division A

January 2, 1940

Suggestion Of Error Overruled February 12, 1940.

APPEAL from the chancery court of Jones county HON. A. B. AMIS, SR. Chancellor.

Suit by the Laurel Equipment Company against the R. B. Tyler Company for the amount allegedly due under an assignment and under a contract. From a decree for plaintiff, defendant appeals. Reversed and rendered.

Reversed and decree here for appellant.

Paul B Johnson, of Hattiesburg, and Jeff Collins, of Laurel, for appellant.

Complainant failed to prove that the agent, a timekeeper, had any authority to execute the alleged contracts. Appellee made no investigation or inquiry as to his authority.

2 C. J 665; Howze v. Whitehead, 95 Miss. 978, 46 So. 401; J. B. Colt Co. v. Black, 144 Miss. 515, 110 So. 442; Russell v. Palatine Ins. Co., 63 So. 644, 106 Miss. 290; Gulfport and Miss. Coast Traction Co. v. Faulk, 80 So. 340, 118 Miss. 890; Cape County Savings Bank v. Gwin Lewis Grocery Co., 86 So. 275, 123 Miss. 443; Felix Gruner Lumber Co. v. Algonquin Lumber Co., 85 So. 191, 123 Miss. 157; Coulson v. Stevens, 85 So. 83, 111 Miss. 497; King v. Levi, 13 So. 282; Malone v. Robertson, 12 So. 709; White v. Lee, 52 So. 206, 97 Miss. 493; Hopkins v. Buckley Terry Co., 71 So. 877, 111 Miss. 621; Busby v. Y. & M. V. R. R. Co., 43 So. 1, 90 Miss. 13; Ismert-Hincke Milling Co. v. Natchez Baking Co., 86 So. 588, 124 Miss. 205; Royal Feed and Milling Co. v. Thorn, 107 So. 282, 142 Miss. 92; Aetna Ins. Co. v. Singleton, 164 So. 13, 174 Miss. 556.

The burden of proof was upon appellee to prove agency of timekeeper and scope of his authority.

J. B. Colt Co. v. Black, 110 So. 442, 144 Miss. 515; Planters' Lumber Co. v. Sibley, 93 So. 440, 130, Miss. 26.

The burden of proof was upon appellee to prove the amount of the account and all credits and balance due of the Miss. Truck Equipment Company, if they were to receive any credit on that account. Second, not having alleged or claimed on the account of the Mississippi Truck Equipment Co. in their bill of complaint, they had no right to prove it, and therefore had no right to any credits on it.

Griffith's Chan. Practice, Secs. 388, 573.

There was no proof that J. B. Carrington was the agent of appellant with authority to make this contract, and there is no proof of any ratification or estoppel, and therefore appellee was not entitled to recover.

J. B. Colt Co. v. Black, 144 Miss. 515, 110 So. 442; Roy Realty Co. v. Burkhardt, 111 So. 289, 146 Miss. 270.

Appellee was stopped to claim 1/2 the gross earnings of J. J. Broome.

The only paper that was ever brought to the notice of the company was "To Whom It May Concern." Therefore, if appellant was bound at all, it was only under this letter, and it more than performed the requirements of the letter.

It appears from the record that it was necessary for the Tyler Company to advance to Broome for labor, gasoline, oil, repairs, etc., amounts in the aggregate exceeding one-half his gross pay under the contract. If the Tyler Company were obliged in addition to these advances to pay to the Laurel Company one-half the gross proceeds, it would amount, as a practical proposition, in depriving the Tyler Company of its contract in that it would impose upon it the payment of more in gross for the work than the contract called for, or else they would have to decline to go on with the contract; or, in other words, lose the contract. May an assignor by an assignment to a third party so maneuver as to deprive the other party to the assignor's main contract, of that contract? If, in other words, the Tyler Company paid to the Laurel Company the entire amount under the contract less expenses paid out by the Tyler Company in carrying out the contract, is there anything upon which the bill may be maintained?

The rule is announced by the American Law Institute that a right may be the subject of effective assignment unless (a) the substitution of a right of the assignee for the right of the assignor would vary materially the duty of the obligor, or increase materially the burdens or risk imposed upon him by his contract, or impair materially his chance of obtaining return of performance.

A. L. I., Restatement, Contracts, Sec. 161; 4 Am. Jur., p. 234; p 261, Sec. 41; pp. 311-312, sec. 104; p. 325, sec. 121; 128 Minn. 307, 150 N.W. 903; Crane Ice Cream Co. v. Terminal Freezing & Heating Co., 47 Md. 588, 128 A. 280, 39 A.L.R. 1184; Sparks v. Jasper County, 213 Mo. 218, 112 S.W. 265.

Welch & Cooper, of Laurel, for appellee.

There are two reasons why the appellant is bound by the acts of J. B. Carrington. The first reason is that Carrington was acting within the scope of his apparent authority. The second reason is that there was a ratification of the acts of Carrington by the appellant. There is still another reason why the decree in this case will have to be affirmed. There was beyond all question and dispute an assignment on the part of Broome to the appellee of fifty per cent of Broome's gross earnings. There did not have to be any consent on the part of appellant. It had notice of the assignment and had no reason for not complying. It paid any part of the fifty per cent assigned to the appellee to anyone else at its peril.

Wilcox v. Routh, 9 S. & M. (17 Miss.), 476; Dyle v. Griffin, 122 Miss. 828, 85 So. 93; Germania Life Ins. Co. v. Bouldin, 100 Miss. 660, 56 So. 609; C. L. Gray Lbr. Co. v. Shubuta Motor Co., 169 Miss. 393, 153 So. 155; Allen v. T. J. Moss Tie Co., 157 Miss. 392, 128 So. 351; Wasserman v. Cosmopolitan Trust Co. of Boston et al., 252 Mass. 253, 147 N.E. 742; Nascho Kostoff et ux v. Meyer-Kiser Bank, 201 Ind. 396, 167 N.E. 527, 69 A.L.R. 796; Restatement of the Law of Agency, Secs. 1, 73.

Broome had the right to make the assignment and the Laurel Equipment Company had the right to accept it and it had the right to call on the appellant to pay according to the tenor of the assignment. Since when has it become necessary for a debtor to consent to an assignment of his indebtedness to another? The appellant gratuitously took upon itself to act as guardian for Broome. It said by its conduct to Broome "you have got no business trying to pay fifty per cent of your gross earnings to pay for the purchase price of your machines. You should have agreed to pay fifty per cent after deducting your labor, including an allowance to yourself for your own labor, and after deducting your gas and oil and repair bills, etc." Apparently the payment was made to Broome for his own labor on the theory that it was necessary under the Federal law that the laborer in charge of the trucks be paid for his labor.

After a very diligent search of the authorities, we are unable to find any case in which it is even suggested in any way that the assignment of a part of the proceeds becoming due under the contract would leave the assignee without a remedy, if the assignor is unable to carry out the contract by reason of his having made the assignment. The court suggests that the appellant, the R. B. Tyler Company, could have been deprived of the benefits of the contract on account of the assignment. We are venturing to suggest to the court with all deference that the pleadings in the case do not raise the question that the court has raised.

To hold that an assignment is bad because it would possibly deprive the assignor of a contract when that very assignment furnishes to the assignor the very life blood of the contract and enables him to comply with the contract, it seems to us is to rewrite the law appertaining to assignment and establish a very inequitable principle.

To be valid an assignment of a fund becoming due to the assignor, it is only necessary that the assignment be supported by sufficient consideration and must be fairly made and must not contravene any recognized rule of public policy.

4 Am. Jur. 230.

The contract in question was not one involving personal skill or service of a relation of personal confidence and, therefore, we think the contract would have been assignable. However, it was not the contract that was assigned, but money to become due under the contract.

4 Am. Jur. 240-241; A. & S. Spengler v. Stiles-Tull Lbr. Co., 94 Miss. 780, 48 So. 966, 19 Ann. Cas. 426; Peoples Bank v. Attala County, 156 Miss. 560, 126 So. 192; First National Bank of Aberdeen v. Monroe County, 131 Miss. 828, 95 So. 726; Canton Exchange Bank v. Yazoo County et al., 144 Miss. 579, 109 So. 1; So. Surety Co. v. Greenville Bank and Trust Co., 154 Miss. 512, 122 So. 529.

To deny the Laurel Equipment Company the right to recover in this case, is to penalize the company for being prudent and for taking an assignment of the pay. To deny the Laurel Equipment Company the right to recover is vesting in R. B. Tyler Company the right to say which of the creditors of Broome shall suffer.

A. L. I. Restatement, Contracts, Sec. 151; 5 C. J. 849, Sec. 9.

With reference to the precise question here, to-wit, the assignment of money due or to become due under a contract, the general rule as stated in Corpus Juris is as follows: "Money due or to become due.--The right to receive moneys due or to become due under a contract is not personal in nature and as a general rule is assignable. A contract to pay money may be assigned by the person to whom the money is payable if there is nothing in the contract manifesting a different intention of the parties. But the fact that a contract is not itself assignable does not prevent a debt matured under it from being assignable."

5 C. J., page 864, Sec. 31, and page 885, Sec. 51.

Beyond doubt, a chose in action is assignable in this state.

Secs 505, 506, 507, Miss. Code...