White v. Coleman

• Citation: 127 Mass. 34
• Court: United States State Supreme Judicial Court of Massachusetts
• Decision Date: 24 June 1879
• Parties: William L. White v. Charles F. Coleman & trustee

127 Mass. 34

William L. White v. Charles F. Coleman & trustee

Supreme Court of Massachusetts

June 24, 1879

Argued October 24, 1878

Bristol. Trustee process. Writ dated October 10, 1877. Virgil H. Wilde, summoned as trustee, was defaulted. Horatio L Lincoln appeared as claimant of the funds in the hands of the trustee by virtue of the following order: "Taunton March 27, 1877. L. N. Francis. Please pay H. L. Lincoln or order all the moneys which may become due me from the Virgil H. Wilde case, and this shall be your receipt for the same. Charles F. Coleman."

At the trial in the Superior Court, before Bacon, J., without a jury, the defendant was defaulted, and the trial proceeded between the plaintiff and claimant. The claimant produced the above order, proved its execution, and that, at the date thereof, Coleman was indebted to him. No question was raised as to the consideration of the order. It was also proved or admitted that, at the date of the order, an action was pending in the Superior Court, in which Coleman was plaintiff and Wilde was defendant, and that Francis was the plaintiff's attorney; that at the September term 1877 of that court a verdict was returned for the plaintiff in that action; and that the same, by order of court, was continued for judgment, by reason of the present trustee process. This was all the material evidence in the case.

Upon these facts, the plaintiff asked the judge to rule that the order produced by the claimant was neither in form nor in substance an assignment of Coleman's interest in the action against Wilde, and, at the time of its execution and delivery to the claimant, was invalid, and of no effect to pass or convey any property of the defendant in this action in the hands of Wilde, as against the plaintiff in this action. But the judge refused so to rule; found for the claimant; and ordered the trustee to be discharged. The plaintiff alleged exceptions.

Exceptions sustained.

S. R. Townsend, for the plaintiff.

L. N. Francis, for the claimant.

Ames, J. Endicott & Lord, JJ., absent.

OPINION

Ames, J.

It appears upon the facts reported in this bill of exceptions, that Francis, upon whom the order was drawn, was the attorney of record for the principal defendant in a suit against the trustee Wilde. At the trial in that suit, in September 1877, about six months after the date of the order, a verdict was rendered in favor of Coleman against Wilde, and the case was continued for judgment on account of the pendency of this present trustee process, and no judgment has yet been rendered. The order upon Francis has never been accepted, and it is manifest that no funds have yet come to his hands from which the order could be said to be payable, if it had been accepted. It is insisted, on the part of the claimant, that this order operated as an assignment to himself of whatever might be recovered in the suit referred to.

In United States v. Vaughan, 3 Binn. 394 which is cited by the claimant, the decision was that a sale in London of shares in the United States Bank, the price being paid, and the certificates delivered with a power of attorney indorsed to provide for the making of the formal transfer, was sufficient to constitute an equitable assignment, good and...