Rivers v. A. & C. Wright & Co

• Decision Date: 07 February 1903
• Citation: 117 Ga. 81,43 S.E. 499
• Parties: RIVERS. v. A. & C. WRIGHT & CO.
• Court: Georgia Supreme Court

43 S.E. 499

117 Ga. 81

RIVERS.

v.A. & C. WRIGHT & CO.

Supreme Court of Georgia.

Feb. 7, 1903.

ASSIGNMENT—ACTION BY ASSIGNEE.

1. A partial assignment of a debt will not vest in the assignee such a title to the portion of the debt assigned as can be enforced in a common-law action, unless the debtor assented to the assignment.

2. Such an assignment is, however, enforceable in equity, though the debtor did not assent thereto, provided all parties at interest are before the court, so that the rights of each in the fund in controversy may he determined in one suit, and settled by one decree.

3. The principle upon which the foregoing rules are founded is that the debtor cannot be subjected to more than one suit for the same cause of action; and, even if equitable remedies will, under our system, be applied in favor of a plaintiff in attachment, he cannot, in such an action, recover on a partial assignment when the only parties before the court are the assignee and the debtor. The assignor should have been made a party, as well as any other persons who claimed title to any portion of the debt.

4. The court did not err in sustaining the demurrer and dismissing the petition.

(Syllabus by the Court.)

Error from superior court, Fulton county; J. H. Lumpkin, Judge.

Action by C. H. Rivers against A. & C. Wright & Co. Judgment for defendants, and plaintiff brings error. Affirmed.

W. H. Terrell, for plaintiff in error.

T. J. Ripley, for defendants in error.

COBB, J. Rivers sued out an attachment against A. & C. Wright & Co., and caused summons of garnishment to be served upon the Atlanta Belt Line Railway Company. He then filed in the superior court a declaration in attachment against the defendants, the material allegations of which were as follows: The defendants are indebted to plaintiff in the sum of $432.95. J. L. Russell & Co. were indebted to plaintiff in the amount just named, and in payment thereof executed and delivered to plaintiff a paper, of which the following is a copy: "Atlanta, Ga., May 14th, 1900. Mess. A. & C. Wright & Co. Gentlemen: Please pay to C. H. Rivers the sum of four hundred thirty two and 95/100 ($432.95) dollars out of the first money due on my contract for the Atlanta West Point Belt Line R. R., this being to reimburse him for money paid to my workmen and for which he holds assignments of these claims for wages due me to an amount sufficient to pay this order and assignment. J. L. Russell & Co., per J. L. R." This order was at once exhibited to the defendants by plaintiff, and at the time it was so exhibited defendants were indebted to Russell & Co., and afterwards became indebted to them in an amount sufficient to pay the order. Notwithstanding this, the defendants refused to pay the amount of the order, and still continue to refuse to pay the same. The peti tion was amended so as to allege that defendants were indebted to Russell & Co. on their contract for the building of the Atlanta & West Point Belt Line Railroad, the defendants being contractors for the building of this railroad, and Russell & Co. being subcontractors under them. The defendants demurred to the petition upon various grounds, the following being among the number: No cause of action is set forth in the petition. The amount due the defendants by J. L. Russell & Co. is not set forth. The petition shows that the order drawn by Russell & Co. on defendants was never accepted by them, and therefore the order, even if valid as an assignment, was not enforceable in a common-law suit, and suit could not be brought thereon in the name of the plaintiff, even in a court of equity. The court sustained the demurrer, and dismissed the petition, and to this ruling the plaintiff excepted.

Construing the petition most strongly against the plaintiff, it seems to be clear that the order relied on by him was an attempt to assign only a portion of the fund claimed to bo due the assignor by the defendants. But whether this construction be proper or not, the demurrer called upon the plaintiff to specify the amount of the fund claimed to be due by the defendants, and hence, if it was essential to set out this amount, it was incumbent upon the plaintiff to do so in response to the demurrer. That it was essential, we shall presently show. Conceding that the paper set out in the petition operated as an assignment pro tanto of the debt to which it related, we are of opinion that the petition was fatally defective in failing to show an acceptance of the order by the defendants. While a chose in action is in this state assignable so as to vest the title in the assignee (Civ. Code, § 3077), a partial assignment of a debt due the assignor will not vest in the assignee such a title to the part of the debt assigned as can be enforced in a common-law action without a previous acceptance by the debtor. According to the authorities, which are founded upon sound and unanswerable reasons, a creditor is not permitted to split up a single cause of action into many actions without the consent of his debtor, and thus subject him to annoyance and embarrassment not contemplated by his original contract. The debtor has a right to stand upon the contract with his creditor as originally made. The law will not permit a creditor to divide an obligation to pay him a stated sum of money Into fragments, and assign them to a number of different persons, thereby subjecting his debtor to the annoyance of more than one claim being presented to him growing out of the single contract, or putting him to the necessity of defending more than one suit for the same cause of action in case he has a defense to the contract as originally made. The rule, as now understood and enforced by the courts, seemto rest mainly upon this ground. It would, indeed, be a hardship if a debtor', by giving to another an obligation to pay him a stated sum of money, should render himself liable to an endless number of suits at the instance of parties to whom his creditor had assigned different portions of the debt. Such a hardship as this the law does not impose upon any...