United Engineers & Constructors, Inc. v. Fiat Metal Mfg. Co.
| Decision Date | 13 July 1932 |
| Docket Number | 8769. |
| Citation | 165 S.E. 609,175 Ga. 509 |
| Parties | UNITED ENGINEERS & CONSTRUCTORS, Inc., v. FIAT METAL MFG. CO. et al. |
| Court | Georgia Supreme Court |
Rehearing Denied Sept. 23, 1932.
Syllabus by the Court.
Petition held to show equitable assignment of contract for work and materials authorizing assignee to recover in equity thereon.
Petition alleged that contract was made with agent of plaintiff for sale of plaintiff's materials, but that, because the contracting party would not purchase the materials unless they were installed, plaintiff and agent agreed that contract should be made in the name of agent, to include the cost of installation, that agent would assign it to plaintiff, that plaintiff would furnish the materials and would retain the net price of materials alone, and pay the remainder over to agent to cover his commission and the cost of installation that after the contract was executed, agent forwarded it to plaintiff in pursuance of the previous agreement for assignment; and that plaintiff notified the contracting party that it held the contract under assignment, and was advised in reply that the assignment was satisfactory.
Evidence including evidence that alleged assignee of contract notified contracting party of assignment and that contracting party assented, held to show "equitable assignment," authorizing assignee's recovery on contract (Civ. Code 1910, § 4530).
"Equitable assignment" is such an assignment as gives the assignee a title which, though not cognizable at law, will be recognized and protected in equity. It is in the nature of a declaration of trust, and is based on principles of natural justice and essential fairness, without regard to form.
1. The allegations of the petition were sufficient to show that the plaintiff held the contract sued on by an equitable assignment, and was entitled to maintain the suit in equity to recover thereon. The petition stated a cause of action and was not subject to the demurrer interposed.
2. The evidence authorized the verdict for the plaintiff and there was no error in refusing a new trial.
Error from Superior Court, Fulton County; John D. Humphries, Judge.
Suit by the Fiat Metal Manufacturing Company against the United Engineers & Constructors, Incorporated, and another. Judgment for plaintiff, and first-named defendant brings error.
Affirmed.
McDaniel Neely & Marshall and W. O. Wilson, all of Atlanta, for plaintiff in error.
Geo. B. Rush and Thomas & Thomas, all of Atlanta, for defendants in error.
BELL, J. (after stating the foregoing facts).
Were the allegations of the petition sufficient to show an equitable assignment to the plaintiff by Hewitt of the contract between him and the engineers company? By the brief of counsel for the plaintiff in error this is made the sole question for consideration under the pleadings, and it is our opinion that the question should be answered in the affirmative. The engineers company made a contract with Hewitt for certain steel partitions to be furnished and installed by the latter, agreeing to pay therefor the sum of $4,620. The plaintiff alleges that Hewitt was in fact the agent of the plaintiff in the sale of its materials, but that, because the engineers company would not purchase the materials unless they were installed, the plaintiff and Hewitt concluded that the contract should be made with the engineers company in the name of Hewitt, to include the cost of installation, but that after the contract was executed Hewitt would assign it to the plaintiff. The understanding between the plaintiff and Hewitt was that the plaintiff would furnish the materials and after collecting the gross price would retain the net price of the materials alone as the amount due to itself, and would pay the remainder over to Hewitt to cover his commission and the cost of installation. It is distinctly alleged that before this contract was executed the plaintiff and Hewitt entered into an agreement in which it was understood that the contract would be assigned to the plaintiff upon its execution. The petition further alleges that shortly after the contract was executed between the engineers company and Hewitt, it was forwarded to the plaintiff by Hewitt in pursuance of the agreement for assignment. Thereafter the plaintiff notified the engineers company that it held the contract under assignment, and was advised in reply that the assignment was satisfactory. The plaintiff subsequently furnished the materials directly to the engineers company, and the same have been installed in accordance with the contract between the engineers company and Hewitt. The plaintiff does not insist upon a legal assignment, but contends that the facts alleged in the petition constituted an equitable assignment. Accordingly, it filed suit in a court of equity to enforce its claims, and caused all persons at interest to be made parties before the court.
In the case of Jones v. Glover, 93 Ga. 484, 21 S.E. 50, 51 it was said, "In order to infer an equitable assignment, such facts or circumstances must appear as would not only raise an equity between the assignor and the assignee, but show that the parties contemplated an immediate change of ownership with respect to the particular fund in question; not a change of ownership when the fund should be collected or realized, but at the time of the transaction relied upon to constitute the assignment." In view of the allegations as to the previous understanding between ...
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