Town of Senatobia v. Ryan
| Decision Date | 22 December 1913 |
| Docket Number | 16,268 |
| Citation | 63 So. 680,106 Miss. 413 |
| Court | Mississippi Supreme Court |
| Parties | TOWN OF SENATOBIA v. J. N. RYAN |
APPEAL from the circuit court of Tate county, HON. N. A. TAYLOR Judge.
Suit by J. N. Ryan for the use of A. L. McCormick against the town of Senatobia. From a judgment for plaintiff, defendant appeals.
The facts are fully stated in the opinion of the court.
Affirmed.
Shands & Montgomery, for appellant.
First Assignment. "The court erred in overruling the demurrer to the amended declaration."
Taking the allegations of the declaration as true it contains two causes of action, one for the money due to Ryan for work done prior to the assignment, a right of action on an assigned chose in action; the other, an action for money earned by McCormick in completing with the consent of the town the assigned contract, this being at the time of the assignment not a chose in action at all. Thus the time of the assignment becomes material. When time is material it must be stated with certainty. 6 Ency. Pleading & Practice, 225, par. 3.
Being two causes of action as stated above, it was improper to join them in one and the same count. 5 Ency. Pleading & Practice p. 305, par. 1, and p. 306, par. 3. The other points presented by the demurrer, will be discussed on the merits in the light of the facts.
Second Assignment. "The court erred in refusing the defendant's instructions A, B and C, set out on pages 222, 223 and 224 of the transcript."
Instructions A and B are based upon the same contention of appellant, and that is that the legal title to the chose in action was not in J. N. Ryan at the time of the suit.
The proof uncontradictedly shows that on the 3rd day of September, 1909, the said Ryan by an order in the following words assigned his right to collect from the town of Senatobia to McCormick, viz.:
This order was accepted by the board, and all payments made were made to McCormick by virtue of such accepted order. When the work was done, nothing remained but the collection of the money. Ryan had parted with the right to do this, and no one on earth could make the collection except McCormick. The language was sufficient to convey, and did convey, the legal title to this right to McCormick.
This case is covered in every detail by the case of Griggs v City of St. Paul, 57 N.W. 461, with this exception. The case at bar is a little stronger for the town than was the Griggs case, in that in our case Ryan had a contract already made with the town, and in the Griggs case the order in the same language as the case at bar was drawn prior to the execution of the contract with the town.
"A written order to an officer to pay to a third party money belonging to the drawer, is an assignment of the right of action to recover it." United States v. Ferguson, 24 C. C. A. 1, 78 F. 103.
"The accepted order, on its delivery, operated not merely as an equitable assignment of so much of the funds as was covered thereby, but as a transfer of the legal title thereto to the payee, creating a direct indebtedness from the city to the bank as of the date of the acceptance; that no further notice to the city than was involved in the presentation and acceptance of the order was required." Third National Bank of Phila. v. Atlantic City, 75 C. C. A. 177.
Where the town recognizes the assignee as the owner of the contract and the indebtedness, such assignee is a proper party plaintiff in an action at law. Carlyle W. L. & P. Co. v. City of Carlyle, 29 N.E. 556.
All the testimony in this case shows that the town dealt with McCormick as the owner of this indebtedness. It did not take any formal act to operate as an acceptance of this order, but the acceptance is implied from the actions of the defendant in the premises. McCutcheon v. Rice & Co., 56 Miss. 455.
In the case of Peck Hammond & Co. v. Williams, 77 Miss. 824, this court held the legal title to an indebtedness due by the city of Jackson for work done by a contractor to be in the assignee, even as against materialmen.
We call especial attention to the case of Wells v. Edwards House, etc., 96 Miss. 191, in which Justice SMITH delivered the opinion of the court. In that case the court sustained the right of an assignee in a one-fourth interest in a recovery for damages for personal injuries, to sue in his own name.
This court, in the case of Spingler v. Lumber Co., 94 Miss. 780, holds that a contractor may assign money due and to become due on contract, and that the assent of the builder is not necessary, and that such assignee holds the legal title thereto. WHITFIELD, C. J., in the opinion on suggestion of error covers this point fully.
In the case of Van Vacter v. Brewster Solomon & Co., 1 S. & M. 401, this court held an order similar to the one in the case at bar to be an assignment, and that upon showing that the fund was in the hands of drawee, assignee could sue at law to recover same. In other words, the legal title there, too, passes.
In the case of Lake v. Hastings, for use of Pierson, 24 Miss. 490, suit was brought against Lake in the name of Hastings for the use of Pierson, on a note which, when introduced in evidence, showed it had been endorsed by Hastings to Pierson, and that Hastings then had no beneficial interest in it. Our court held in unmistakable terms that in a court of law the suit must be in the name of the owner of the legal title, and reversed a judgment for the plaintiff.
But this question is everlastingly put to rest by Justice CAMPBELL in the case of Beck v. Rosser, 68 Miss. 72 in a case where the question was not raised at all in the lower court and...
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...to the verdict, when it is a mere matter of computation. Hearst v. Mfg. Co., 128 Miss. 342; Collins v. Carter, 155 Miss. 602; Senatobia v. Ryan, 106 Miss. 413; Aetna Ins. Co. v. Natchez Hotel Co., 160 Miss. 33 C. J., pages 237 and 254. A new trial will not be granted where it is apparent fr......
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