Robinson v. City of Pine Bluff

• Decision Date: 14 March 1955
• Docket Number: No. 5-594,5-594
• Citation: 224 Ark. 791,276 S.W.2d 419
• Parties: George J. ROBINSON, Jr., et al., Appellants, v. CITY OF PINE BLUFF et al., Appellees.
• Court: Arkansas Supreme Court

Page 419

276 S.W.2d 419

224 Ark. 791

George J. ROBINSON, Jr., et al., Appellants, v. CITY OF PINE BLUFF et al., Appellees.

No. 5-594.

Supreme Court of Arkansas.

March 14, 1955.

Rehearing Denied April 11, 1955.

John Harris Jones, Pine Bluff, for appellants.

G. Lawrence Blackwell, Pine Bluff, House, Moses & Holmes, Little Rock, Coleman, Gantt & Ramsey and Bridges & Young, Pine Bluff, for appellees.

ROBINSON, Justice.

The City of Pine Bluff entered into a contract with Lancaster & Love, contractors, for the construction of a sanitary sewer. Later the city and Lancaster & Love entered into a supplemental contract for additional work. Appellants George J. Robinson, Jr., and Lee A. Robinson, doing business as Robinson Construction Company, entered into a subcontract with Lancaster & Love, whereby for the consideration of $52,792 the Robinsons were to construct that portion of the project provided for in the supplemental contract between the city and Lancaster & Love.

The Robinsons brought this action to recover an alleged balance due of $30,208.02 on their subcontract; and $791 for work additional to the contract. They also allege the right to recover on a quantum meruit basis, and in addition seek a declaratory judgment on other points. The City of Pine Bluff, Trinity Universal Insurance Company, makers of the statutory bond for Lancaster & Love, and the Simmons National Bank, depository of the fund for construction of the sewer project, were all made party defendants. Later the Robinsons filed amendments to the complaint, and the National Bank of Commerce of Pine Bluff was brought into the case as another depository of the fund.

The defendants City of Pine Bluff and the two banks demurred to the complaint and the amendments thereto. The city demurred on the grounds that there is a defect of parties and that the complaint and amendments do not state a cause of action. Both banks demurred on the ground that neither the complaint nor the amendments state a cause of action as to them. The Chancellor sustained the demurrers and the Robinsons have appealed. Lancaster & Love are not parties to the action, and the Trinity Universal Insurance Company, makers of the bond for Lancaster & Love, although a party defendant, is not a party to this appeal.

The Robinsons contend that the complaint states a cause of action against the city on an alleged assignment executed by Lancaster & Love in favor of the Robinsons and accepted as an assignment by the city; that the complaint states a cause of action against the city on a quantum meruit basis; and also that the complaint and amendments thereto state a cause of action against the banks on the theory that the fund in question is in fact a trust fund and is being depleted to the prejudice of the plaintiff.

First, as to the assignment, it is alleged that the subcontract was made December 19, 1951; that under the terms of this agreement the Robinsons were to be paid $52,792; that only a portion of this sum has been paid, and that there is a balance due of $30,208.02; that the Robinsons have fully performed their part of the contract; that according to the terms of the contract between the city and the prime contractor, the work done by the Robinsons was to be paid for on monthly estimates. The complaint also alleges that the prime contractor, according to the terms of the subcontract, was to pay the Robinsons for their work monthly; that the prime contractors Lancaster & Love executed and delivered to the Robinsons an assignment authorizing the city to pay to the Robinsons the monthly estimates on the subcontract in the event the prime contractor failed in that respect; that the prime contractor did fail to make the monthly payments and consequently the subcontractor delivered the alleged assignment to the city. The complaint alleges that the assignment was delivered to and accepted by the city on April 11, 1952, and that subsequently several payments were made pursuant to such assignment. The alleged assignment is in the form of a letter from Lancaster & Love to the Robinsons and is as follows:

'As per agreement entered into by and between us on the 28 day of December, 1951, upon issue of a check from the City of Pine Bluff, the writer or its agent will simultaneously and immediately deliver a check in payment of the amount due under your contract above mentioned.

'In the event the above mentioned conditions are not complied with, this is your authority to deliver this letter to the Sewer Commission so that you may have an assignment of all checks or funds to be paid under this contract, so that you may secure your money in accordance with the terms of the contract heretofore entered into.'

The first question is, Do the allegations in the complaint with reference to the above-mentioned letter constitute an allegation of an assignment that is good as against a demurrer?

'An assignment is an expression of intention by assignor that his right shall pass to the assignee.' Brewer v. Harris, 147 Kan. 197, 75 P.2d 287, 290; 4 Words and Phrases, Assignment, p. 493.

The definition of an assignment 'is the setting over, or transferring, the interest a man hath in any thing to another.' Edison v. Frazier, 9 Ark. 219.

Ark.Stat. § 68-801 provides: 'All bonds, bills, notes, agreements and contracts, in writing, for the payment of money or property, or for both money and property, shall be assignable.'

To constitute an assignment, no particular words are necessary. In City National Bank v. Friedman, 187 Ark. 854, 62 S.W.2d 28, 29, the court quoted from Moore & Moore v. Robinson, 35 Ark. 293, 297, as follows: "To constitute an assignment of a debt, or other chose in action, in equity, no particular form is necessary, and it may be by parol. Judge Story says: If A having a debt due to him from B, should order it to be paid to C, the order would amount, in equity, to an assignment of the debt, and would be enforced in equity, although the debtor had not assented thereto. The same principle would apply to the case of an assignment of a part of such debts. In each case, a trust would be created in favor of the equitable assignee on the fund, and would constitute an equitable lien upon it." The court further quoted from the Moore case: "Where draft or order is drawn in favor of a third person for the whole of a particular fund or debt, it will operate as an equitable assignment * * * and after notice of such is communicated to the drawee, it will bind the debt in his hands." The court further said: 'Here it is undisputed that the orders were filed with the secretary of the commission and this served to give it notice of the assignment of the refund to Friedman, whether the individual commissioners were actually informed of this or not. The only reason for giving any notice of an assignment of a debt to the debtor is to direct him to whom it should be paid and thus protect him from any subsequent claim by the assignor.'

In the case at bar the...