Ruthven Brothers v. Clarke
| Decision Date | 27 May 1899 |
| Citation | 79 N.W. 454,109 Iowa 25 |
| Parties | RUTHVEN BROTHERS, Appellants, v. C. E. CLARKE, Garnishee, HOME SAVINGS & TRUST COMPANY, Intervener |
| Court | Iowa Supreme Court |
Appeal from Palo Alto District Court.--HON. W. B. QUARTON, Judge.
GARNISHMENT proceedings by a judgment creditor. The answers of a garnishee were taken, a petition of intervention was filed to which the judgment creditor filed an answer, there was a trial by jury, and a verdict and judgment for the intervener. The judgment creditor appeals.
Affirmed.
McCarty & Linderman and B. E. Kelly for appellant.
E. C Rowell and John Menzies for appellee.
On the sixteenth day of March, 1897, C. E. Clarke, the garnishee was owing W. H. McCune three hundred dollars, and the latter was owing more than that amount on an unsatisfied judgment rendered in favor of and owned by Ruthven Bros. Before 10 o'clock in the morning of the day specified, McCune drew and delivered an order, a copy of which is as follows: " A few minutes after 10 o'clock of the same morning Clarke was garnished under an execution issued on the judgment of Ruthven Bros. The Home Savings & Trust Company filed a petition of intervention, in which they claimed the amount due from the garnishee by virtue of the order to apply on an indebtedness for more than three hundred dollars, evidenced by the promissory note of McCune and his wife. Ruthven Bros, denies that the order was effectual to assign the amount due from Clarke, and alleges that the pretended sale or assignment of that amount was without consideration, and made to hinder, delay, and prevent the collection of the plaintiff's debt; that McCune and Giddings conspired together fraudulently to place the money about to become due from Clarke beyond the reach of the plaintiff; and that at the time of the transaction Giddings was not authorized to accept the order for the intervener.
I. The court permitted McCune and Giddings to testify respecting the circumstances under which the order was drawn and delivered, and the conversation they had at that time. The purpose of the testimony was to show that Giddings was the agent and local treasurer of the defendant; that McCune said he might not be in Ruthven when the money which Clarke owed became due, and he wished to give Giddings an order to collect the money, and "turn it in" to the intervener, as he was its local treasurer. McCune testified that he stated at the time that he wished to transfer his account against Clarke to the intervener, and that the order was given to accomplish that purpose. We are of the opinion that the evidence was properly admitted. The relation of principal and agent is a condition of which any one having personal knowledge may testify. Huesinkveld v. Insurance Co., 106 Iowa 229, 76 N.W. 696. It did not appear that the authority of Giddings was in writing, and the testimony respecting his agency was not objectionable on any of the grounds stated. It was not necessary that the entire transaction involved in the transfer of the amount owed by Clarke be shown by the order, but it was competent to prove the circumstances of the transaction, and the intent of the parties to it, by other evidence. Moore v. Lowrey, 25 Iowa 336; McWilliams v. Webb, 32 Iowa 577; Metcalf v. Kincaid, 87 Iowa 443, 54 N.W. 867.
II. It is said that the evidence failed to show an assignment before the garnishment was effected. There was evidence which tended to show that prior to the transaction in question McCune had correspondence with the intervener concerning payment of the amount due the intervener, and the latter had authorized Giddings to receive such sums as McCune could pay; that after the order was drawn, and before the garnishment was effected, McCune informed Clarke that the claim against him had been assigned to Giddings as agent for the intervener, and that the assignment was for the benefit of the intervener. It was said in McWilliams v. Webb, supra, that, "where an order is drawn for the whole of the fund, it operates as an equitable assignment of it, after notice of the drawee, and it becomes his duty to accept." See, also Metcalf v. Kincaid, supra. We are of the opinion that the jury was authorized by the evidence to find that an assignment of McCune's claim against Clarke had been effected before the latter was garnished.
III. The intervener was permitted to read in evidence copies of the note and mortgage given to it by McCune and wife, which represented the indebtedness on account of which the order in controversy was given. The copies were attached to a deposition of E. C. Spinney, the secretary and manager of the intervener, and a statement of the officer who took the deposition shows that the originals were produced, and that they were copied, and copies thereof attached to the deposition. Section 3736 of the Code of 1873, in force when the deposition was taken, provided that "all exhibits produced before the person taking the depositions or proved or referred to by any witness, or correct copies thereof must be appended to the depositions and returned with them, unless sufficient reason be shown for not so doing." That provision did not purport to make competent as evidence anything which before was incompetent, and the same is true of section 4700 of the Code. A party to an action may have a right to demand the production of an original instrument which his adversary seeks to prove, notwithstanding the fact that a copy of it is attached to a deposition introduced in evidence. The copy may be necessary to a full understanding of the testimony of the witness who refers to it; and where the owner of the original, because of its value, and the danger of loss, or for the reason that it is needed for other uses, or for any other sufficient cause, declines to have it attached to a deposition, a copy may be the means of identifying the original when it is regularly offered on the trial of the cause. The case of Bullis v. Easton, 96 Iowa 513, 65 N.W. 395, although not precisely in point, has...
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