Scott v. Hall

• Decision Date: 29 October 1945
• Citation: 177 Or. 403,163 P.2d 517
• Parties: SCOTT <I>v.</I> HALL ET AL.
• Court: Oregon Supreme Court

177 Or. 403

163 P.2d 517

SCOTTv.

HALL ET AL.

Supreme Court of Oregon.

Argued at Pendleton October 29, 1945.

Affirmed November 14, 1945.

Pleading

1. A demurrer to an answer searches the record and challenges sufficiency of complaint.

Principal and agent

2. Attorneys in fact created by formal letters of attorney are merely special kinds of agents, and in construing such letters or powers and determining their effect the principles of the law of agency apply.

Principal and agent

3. An agency, coupled with interest in thing upon which agency operates, is irrevocable.

Principal and agent

4. If an agency or power is given as a security, it is, from its very nature and character in contemplation of law, irrevocable.

Assignments

5. A power of attorney given to one to collect or receive a debt or fund, will, as between the parties thereto, operate as an "equitable assignment" of debt or fund, where such power is coupled with interest in subject matter and is intended as a transfer of it; if, however, the power is not made upon a valuable consideration or is a mere naked authority, it will not operate as an equitable assignment.

Workmen's compensation

6. A power of attorney directing the Industrial Commission to send claimant's compensation checks to plaintiff with authority to the latter to indorse them was not binding on the Commission, since, if under the power, the plaintiff's authority was limited to receiving the checks and indorsing them, the agency was revocable, and if it was irrevocable because the power was coupled with an interest, the power would constitute an equitable assignment of a portion of the compensation fund prohibited by law.

                  See 4 Am. Jur. 300
                  6 C.J.S., Assignments, § 62
                

Before BELT, Chief Justice, and ROSSMAN, BAILEY, LUSK and HAY, Associate Justices.

Appeal from Circuit Court, Union County.

R.J. GREEN, Judge.

Suit by C.L. Scott against Walter Wallace Hall and others to enjoin named defendant from revoking a power of attorney, and requiring defendant State Industrial Accident Commission to govern itself by the terms of such power of attorney. From an adverse decree, plaintiff appeals.

AFFIRMED.

E.M. Sabin, of Union, for appellant.

T. Walter Gillard, Assistant Attorney General (George Neuner, Attorney General, on the brief), for respondent State Industrial Accident Commission.

No appearance for respondent Walter Wallace Hall.

LUSK, J.

This suit was brought for the purpose of obtaining a decree of the court enjoining the defendant Hall from revoking a certain power of attorney executed by him to the plaintiff Scott, and requiring the defendant State Industrial Accident Commission to govern itself by the terms of such power of attorney.

The plaintiff has appealed from a decree in favor of the defendants.

The case was decided below on the pleadings. Hall demurred to the complaint and his demurrer was sustained. The commission filed an answer and the plaintiff a reply, but later, pursuant to stipulation of the parties, the plaintiff demurred to the affirmative matter in the commission's answer and the demurrer was overruled.

The facts alleged in the complaint may be summarized as follows: The defendant Hall had filed with the commission a claim for personal injuries under the Workmen's Compensation Act, which was allowed, and on which there was a balance due Hall of $1,094.00, payable in monthly installments of $25.00. On December 10, 1943, Hall executed to the plaintiff for a valuable consideration a promissory note for $1,050.00, payable in monthly installments of $25.00, and contemporaneously therewith he executed the power of attorney in question "for the purpose of securing the payment" of such promissory note. The material portion of the power of attorney is as follows:

"KNOW ALL MEN BY THESE PRESENTS, That I, Walter W. Hall, of Union, Oregon, do hereby constitute and appoint C.L. Scott, of Union, Oregon, my true and lawful attorney for me and in my name to receive and endorse my name to checks to be issued to me by the State Industrial Accident Commission, due to be paid me under claim No. 788029, allowed by said Commission, until the full and entire sum due to be paid to me under said claim shall have been paid.

"And I direct said Commission to send said checks and each of them to said C.L. Scott at Union, Oregon."

The power of attorney is alleged to be "coupled with an interest" and "irrevocable". Plaintiff lodged it with the commission, which, in compliance with its terms, sent Hall's monthly checks to Hall in care of the plaintiff for a period of twelve months. The plaintiff received the checks, endorsed them, and received the proceeds thereof to the amount of $275.00. In December, 1944, Hall notified the commission of his intention to revoke the power of attorney and instructed the commission to send his checks directly to him and not in care of the plaintiff. It is alleged that unless Hall is restrained from revoking the power of attorney and the commission from sending the checks directly to Hall, the plaintiff will suffer irreparable loss, as Hall is insolvent and execution proof.

The commission, in its answer, admits substantially all the allegations of the complaint except the execution of the promissory note by Hall to Scott and the allegations that the power of attorney was coupled with an interest and irrevocable, and that defendant Hall is insolvent and execution proof. The commission's affirmative answer is a restatement in different form and somewhat greater detail of the matters alleged in the complaint in respect of the commission's dealings with the power of attorney. Attached to the answer as an exhibit is a copy of a letter dated December 15, 1943, written by the commission to the attorney for the plaintiff, acknowledging receipt of the power of attorney, which, it is stated, "is being accepted as revocable at the will of Mr. Hall since the Compensation Law specifically prohibits the assignment of compensation payment."

LUSK, J.

1. A demurrer to an answer searches the record and brings into consideration the complaint and challenges its sufficiency. 41 Am. Jur., Pleading, 456, § 234. Hence, the case is before us as though both defendants had demurred to the complaint. If the complaint fails to state facts sufficient to constitute a cause of suit the decrees must be affirmed.

Section 102-1770, O.C.L.A., provides in part:

"No moneys payable on account of injuries or death hereunder shall be subject to assignment prior to the receipt thereof by the beneficiary entitled thereto, nor shall the same pass by operation of law."

If the transaction pleaded constituted an assignment of the moneys coming to Hall from the commission it was void; Hall had the right to revoke it; the commission was bound by Hall's...