Turner v. Wells

CourtUnited States State Supreme Court (New Jersey)
Writing for the CourtDIXON, J.
Citation45 A. 641,64 N.J.L. 269
PartiesTURNER et al. v. WELLS et al.
Decision Date05 March 1900
45 A. 641
64 N.J.L. 269

TURNER et al.
v.
WELLS et al.

Court of Errors and Appeals of New Jersey.

March 5, 1900.


(Syllabus by the Court.)

Error to supreme court.

Action by John F. Turner and others against Mark P. Wells and others. Judgment for defendants. Plaintiffs bring error. Reversed.

Thompson & Cole, for plaintiffs in error.

W. M. Clevenger, for defendants in error.

DIXON, J. The circumstances of this case are as follows: On December 20, 1898, the defendants entered into a contract with James F. Levering whereby Levering became bound to supply the materials for, and to do the brick and concrete work upon, a building in Atlantic City, which the defendants had agreed to construct, and the defendants became bound to pay him therefor $2,000 in the manner and on the terms specified in the contract. On March 23, 1899, Levering executed a written assignment to the plaintiffs, to whom he was indebted, of the moneys due and to grow due to him on that contract, and on the same day the plaintiffs served a copy of the assignment on the defendants, to which the latter made no objection. At that time Levering had not fully completed his work, but on April 29, 1899, the defendants paid $45 for cleaning and painting, which, as one of the defendants testified for the plaintiffs at the trial below, was for finishing Levering's work. On May 27, 1899, the plaintiffs began this suit for the money owed by defendants as a final payment on the Levering contract, and at the trial proved by the testimony of one of the defendants that the unpaid balance of the contract price was $729.46. On this evidence the trial justice ordered a verdict in favor of the plaintiffs for that sum, on which direction an exception was sealed for the defendants. The consequent judgment is now before this court for review.

The grounds on which the judgment is assailed are substantially twofold; the first being that, by the terms of the contract between Levering and the defendants, the assignment to the plaintiffs was invalid. The contract provides that "the final payment * * * will be paid to the said James F. Levering, his executors, administrators, or assigns, upon," etc. "* * * It is further distinctly agreed that the said [Levering] shall not assign this contract, or any interest therein or part thereof, or any right to any of the moneys to be paid him thereunder, and that any such assignment shall, at the option of the [defendants], be null and void." Whether, in view of the amendment of our practice act approved March 4, 1890 (2 Gen. St. p. 2591), which enacts "that all bills, bonds and other writing, whether sealed or not, containing any agreement for the payment of money, * * * and all other choses in action arising on contracts, shall be assignable at law, and the assignee or assignees may sue thereon in his, her or their own name," and the general rule that a

45 A. 642

contract made in contravention of a statute is void and cannot be enforced, a stipulation for the absolute nonassignability of money due or to grow due under a written contract would be valid, need not now be decided, for the present stipulation is not of that nature. Construing all the language of the provision, the meaning plainly is that an assignment would be void at the option of the defendants. It was valid unless they chose to annul it. The time for the exercise of their option was on March 23d, when the plaintiffs served on them a copy of it, or within a reasonable time thereafter. Their failure to do so then, or at any time before May...

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7 practice notes
  • Evans v. Cheyenne Cement, Stone & Brick Company, 673
    • United States
    • United States State Supreme Court of Wyoming
    • March 24, 1913
    ...v. Clark, 110 Wis. 43; Jennings v. Camp., 13 Johns. 94; Perry v. Quackenbush, 38 P. 740; Smith v. Brady, 17 N.Y. 173; Turner v. Wills, 64 N. J. L. 269; Zottman v. San Francisco, 20 Cal. 96.) The evidence discloses that the defendant did not accept the work, and therefore the plaintiff could......
  • Inter-Southern Life Ins. Co. v. Humphrey, 21068
    • United States
    • United States State Supreme Court of Mississippi
    • December 8, 1919
    ...he assented to it, in the absence of allegation and proof to the contrary. 3 Paige on Contracts, p. 1943, sec. 1263; Turner v. Wells, 64 N. J. L. 269, 45 A. 641; Burnett v. Jersey City, 31 N.J.Eq. 341; Staples v. Somerville, 176 Mass. 237, 57 N.E. 386. It is manifest, therefore, that on the......
  • Mechanics' Trust Co. v. Halpern, No. 419.
    • United States
    • United States State Supreme Court (New Jersey)
    • May 13, 1936
    ...facie. Besser v. Krasny, 114 N.J. Law, 146, 176 A. 146; Tricoli v. Tramonde, 95 N.J.Law, 363, 113 A. 230; Turner v. Wells, 64 N.J.Law, 269, 45 A. 641. But this burden does not exist as to a factual ingredient admitted by the defendant. It is one of the first principles of procedure that, wi......
  • Dillenberger v. Weingartner
    • United States
    • United States State Supreme Court (New Jersey)
    • March 5, 1900
    ...Light Co., 54 N. J. Law, 411, 24 Atl. 487; Chandler v. Railway Co., 61 N. J. Law, 380, 39 Atl. 674. In contemplation of law her undertaking 45 A. 641 to assume the apparent risk of the work is general and unqualified. Foley v. Light Co., 54 N. J. Law, 411-414, 24 Atl. 487. A like knowledge ......
  • Request a trial to view additional results
7 cases
  • Evans v. Cheyenne Cement, Stone & Brick Company, 673
    • United States
    • United States State Supreme Court of Wyoming
    • March 24, 1913
    ...v. Clark, 110 Wis. 43; Jennings v. Camp., 13 Johns. 94; Perry v. Quackenbush, 38 P. 740; Smith v. Brady, 17 N.Y. 173; Turner v. Wills, 64 N. J. L. 269; Zottman v. San Francisco, 20 Cal. 96.) The evidence discloses that the defendant did not accept the work, and therefore the plaintiff could......
  • Inter-Southern Life Ins. Co. v. Humphrey, 21068
    • United States
    • United States State Supreme Court of Mississippi
    • December 8, 1919
    ...he assented to it, in the absence of allegation and proof to the contrary. 3 Paige on Contracts, p. 1943, sec. 1263; Turner v. Wells, 64 N. J. L. 269, 45 A. 641; Burnett v. Jersey City, 31 N.J.Eq. 341; Staples v. Somerville, 176 Mass. 237, 57 N.E. 386. It is manifest, therefore, that on the......
  • Mechanics' Trust Co. v. Halpern, No. 419.
    • United States
    • United States State Supreme Court (New Jersey)
    • May 13, 1936
    ...facie. Besser v. Krasny, 114 N.J. Law, 146, 176 A. 146; Tricoli v. Tramonde, 95 N.J.Law, 363, 113 A. 230; Turner v. Wells, 64 N.J.Law, 269, 45 A. 641. But this burden does not exist as to a factual ingredient admitted by the defendant. It is one of the first principles of procedure that, wi......
  • Dillenberger v. Weingartner
    • United States
    • United States State Supreme Court (New Jersey)
    • March 5, 1900
    ...Light Co., 54 N. J. Law, 411, 24 Atl. 487; Chandler v. Railway Co., 61 N. J. Law, 380, 39 Atl. 674. In contemplation of law her undertaking 45 A. 641 to assume the apparent risk of the work is general and unqualified. Foley v. Light Co., 54 N. J. Law, 411-414, 24 Atl. 487. A like knowledge ......
  • Request a trial to view additional results

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