Shackleford v. Kiser Co. , 131 Ala. 224 ( 1901 )

TYSON, J.

This controversy is between a garnishing creditor and a claimant of an admitted sum due by garnishee to the defendant, debtor. The claimant bases Ids right to the money upon .the stipulations contained in a power* of attorney given him by the debtor constituting him the debtor’s true and lawful attorney in fact coupled with the authority “to demand, receive, collect and receipt far any and all accounts,' demands, claims or dues now in existence or hereafter to be created for* and on account of any iron ore shipped or to be shipped by me or in the name of the Alabama Mining-Company to the Sloss Iron & Steel Company,” etc. * * * to be applied to the payment of ten cents per ton commissions and current account between the parties, etc. The date of the execution of this paper is April 26, 1900. At that time, there existed between the debtor and the garnishee a contract under which the former was bound to deliver the ore mentioned in the power of attorney and the latter was obligated to receive and pay for it at a stipulated price per ton. This contract expired on the 31st day of May, 1900.

On the 12th of June, 1900, the parties entered into another contract of similar import, though containing substantially different provisions, with respect to other matters, not necessary to be pointed out. It was under the performance of the obligations of this latter contract, that the indebtedness of the garnishee arose.

It seems to be conceded, that the power of attorney, coupled with an order of the garnishee given by the debtor to the claimant, had the effect of assigning to the claimant all monies due by the garnishee under the first contract. Whether this be true or not, we need not and do not decide. The question presented by the record is, did the power of attorney transfer to claimant the ownership of the money accruing to the debtor under the second contract? It will be observed, from an examination of the dates given above, that the power of attorney was executed more than one month and a half before this contract was entered into. At that time, there was no obligation on the part of the garnishee to enter into this contract and none on the part of the debtor. There was, therefore, no subsisting engagement, under which the account or demand could arise. The money claimed by appellant depended, at the date of the alleged assignment to him, altogether upon a future engagement whether it would ever become due. Its future accrual constituted a mere possibility coupled with no interest. It certainly had no actual existence, nor could it have a potential one in the absence of some engagement out of which it was to arise. It is true the iron ore had.an existence, but the power of attorney does not purport to convey any interest in it. The attempt was to assign or transfer the proceeds which might arise under a contract to be made in the future for its sale. — Mulhall v. Quin, 1 Gray, 105; Eagan v. Luby, 133 Mass. 545; Herbert v. Bronson, 125 Mass. 475; Purcell v. Mather, 35 Ala. 570; Skipper v. Skipper, 42 Ala. 255. “A power of attorney, although, irrevocable in terms, does not amount to an assignment when no assignable interest exists at the time.” — Mulhall v. Quin, supra.

Having shown that no title to the money in controversy passed to claimant under the order and power of attorney, the next question is, did the title pass under an implied contract of 'assignment? It is insisted that it did. Without deciding whether 'an assignment can or may be raised by implication so as to pass the title to this money, it is a sufficient answer to the contention to say that there is no evidence that the garnishee, the debtor, ever accepted the implied request, if it ever existed and if ranch a request could be accepted, of its creditor to pay this money to the claimant. Until payment or acceptance, the request, if it be implied, of the creditor of the garnishee was revocable at the option of such creditor. And until acceptance, it is clear that Shackleford, the claimant, acquired no title to the money in the hands of the garnishee and could not maintain an action against it for its recovery. — Coleman v. Hatcher, 77 Ala. 221 and cases cited; Hanchey v. Hurley, 129 Ala. 306.

Affirmed.