Warren v. Sullivan , 1877 Mass. LEXIS 263 ( 1877 )

Soule, J.

The learned judge, who tried this case without a jury, found as a fact that the assignment, under which the claimant insists that he is entitled to the fund, was made without fraudulent purpose, as security to the .claimant for goods already furnished, and as security for such goods as should thereafter be furnished to the principal defendant by the claimant, and in consideration that the claimant should furnish the defendant with goods from time to time during the term named in the assignment. It does not appear that there was any agreement by the defendant to buy goods to any specified amount; nor by the claimant to sell goods to any specified amount. Either party was free to discontinue the dealings at any time. The assignment being made and held only as security for payment for such goods as had been or should be sold to the defendant, the rights of the claimant to retain the wages assigned, after the end of the term named in the assignment, would cease when he had been fully paid for what he had sold. The defendant would be entitled to any balance of the wages remaining after such payment to the assignee. This is the meaning of the statement that the assignment was given as security for goods sold and to be sold. It appears, therefore, that the assignment was held “ only as security for a debt,” within the meaning of the St. of 1865, c. 43, § 1, and that the plaintiff is entitled to hold the balance in the hands of the trustee above the amount due the claimant at the time of service of the writ.

The rule of law having been established, that the real consideration of assignments of future wages may be inquired into, and the facts having been found as above stated, the case is brought into very close resemblance to those cases in which the assignment set forth in terms that the balance of wages remaining after payment and satisfaction of all the debt and advances should be paid to the assignor. In those cases, before the St. of 1865, it was held that the trustee must be charged for any balance in his hands at the service of the writ, above the amount then due the assignee. Darling v. Andrews, 9 Allen, 106. The like agreement is implied in the finding that the assignment was held as security.

We are of opinion that the learned judge erred in refusing to rule that the excess in the hands of the trustee, above the amount due the claimant at the time of service, was subject to be held by the trustee process, in the same manner and with the same effect as if no assignment had existed.

Exceptions sustained.