William Gilligan Co. v. Casey

• Decision Date: 23 February 1910
• Citation: 205 Mass. 26,91 N.E. 124
• Parties: WILLIAM GILLIGAN CO. v. CASEY et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

205 Mass. 26

91 N.E. 124

WILLIAM GILLIGAN CO. v. CASEY et al.

Supreme Judicial Court of Massachusetts, Suffolk.

February 23, 1910

Defendant Casey contracted on May 28, 1907, for the construction of a macadam roadway for the city of Boston. The contract was signed: 'Bay State Contracting Company, Thomas Hurley President.' Defendant was doing business under that name. On June 10, 1907, he executed an assignment whereby he, under the name 'Bay State Contracting Company, Thomas Hurley President' assigned to Byron R. Mitchell all sums due and coming due from the city. The second, third, fourth, and fifth requests of plaintiff were as follows:

'(2) There can be no valid assignment by any person, which is good against attaching creditors, unless the assignment is made and recorded by him in his own name, or if in another name under which he does business, unless that name is one under which he is, as matter of fact and notoriety, equally well known as by his individual name.

'(3) The assignment under which the claimant claims title to the fund in question was an assignment of future earnings under St. 1905, c. 308, and was invalid as against the plaintiff as an attaching creditor, because it was such an assignment as is made invalid by that statute.

'(4) The assignment under which the claimant claims this fund was invalid because it was an assignment of wages under St. 1906, c. 390, and did not conform to the requirements of that statute.

'(5) In considering whether or not this was an assignment of future earnings, or of wages, the court may take into consideration the construction put upon it by the claimant. The fact that he recorded the assignment is evidence tending to show that he considered it an assignment which required record under the statutes above referred to.'

COUNSEL

Olcott O. Partridge, for plaintiff.

Wm. B. Orcutt, for claimant.

OPINION

MORTON, J.

The issue in this case relates to the validity of the assignment under which the claimant asserts title to the funds in the hands and possession of the trustee. The case was tried in the superior court, on appeal from the municipal court of Boston, without a jury, and the court found in favor of the claimant. The defendant was defaulted. The case is here on exceptions by the plaintiff to the refusal of the court to give certain rulings that were requested by it. The first ruling asked for was given; the others were refused.

The assignment was executed by the defendant in the name of 'Bay State Contracting Company, Thomas Hurley, President.' The court finds that the defendant had previously made a contract with the city of Boston under the same name, and that for advances made when the assignment was executed and to be made thereafter he assigned to the claimant by the assignment in question the payments to become due under that contract. The court also finds that when the trustee process was served the defendant was indebted to the claimant for a larger amount than the amount then due to the defendant from the city of Boston under the contract. And it further finds that the defendant previously had done business under the name of the Bay State Contracting Company. There is no finding of fraud or of anything tending to show that the claimant and defendant acted otherwise than in good faith.

It is...