Board of Trustees v. Whalen , 17 Mont. 1 ( 1895 )

Pemberton, C. J.

The appellants contend that there was error in the action of the court in striking from their pleadings the allegations therein contained, and as set out in subdivisions a, b, and c in the statement, relative to Marlow’s having been a party to the suit of Whalen & Grant against the plaintiff in this suit, the entry of default against him, and his being estopped from claiming any interest in the moneys in dispute herein by reason of the proceedings and default therein.

This we regard as the main question involved in this appeal. We think the bank was not a necessary or proper party in the suit of Whalen & Grant against the plaintiff herein. That was a suit at law to collect the amount Whalen & Grant claimed to be due and owing them from the board of trustees upon a contract to build a schoolhouse in district No. 1. While the amended complaint in that case stated that Whalen & Grant had assigned the moneys due and to become due to them on the contract with said trustees, and that the trustees refused to pay any part of said sum, either to them or to the bank, and the prayer of said complaint stated the bank claimed an interest in the matter, and asked that the bank be required to assert its interest, still we think the complaint stated no facts that required the bank to appear and claim an adjudication of any rights it had to the moneys claimed to be due from the trustees to Whalen & Grant. Whalen & Grant, in their complaint, disclosed the interest or claim the bank had in the moneys claimed to be due from the trustees to them. They stated that they had assigned this money to the bank. This was not disputed by the trustees in that suit. No issue was made that demanded the appearance of the bank to defend any right involved in that controversy. No adjudication was had or attempted in that suit as to any right of the bank to any moneys coming to Whalen & Grant from the trustees. The suit was tried and determined as if the bank had never been mentioned in the pleadings. Nor are we able to see that there was any issue in that case that involved or could have involved any right of the bank. Whatever right the bank had was dependent upon the recovery of Whalen & Grant. Whalen & Grant had assigned to the bank the right to collect of the trustees, of the moneys due and to become due on the building contract, an amount equal to the amount advanced by the bank to them to enable them to build the schoolhouse. Whalen & Grant allege this in their complaint. They could not deny it. The trustees did not controvert it. Then there was no controversy into which the bank could be drawn. There was no controversy to which it could become a party. There was no controversy as to this matter adjudicated or determined in that suit by the court, or attempted to be adjudicated or determined. We think, therefore, that the allegations of the pleadings of the appellants which were stricken therefrom by the court, as shown above, constituted no defense to the bank’s claim to the moneys in dispute, and that there was no error in the action of the court in this respect. It is not contended in that suit that the bank was a real party in interest to the extent that it should have been a party thereto.

The judgment entered in the case of Whalen & Grant against the school board contained this recital: “The default of the defendant bank having been duly entered. ’ ’ There is no other reference to the bank in the judgment. Counsel for appellants contend that, by virtue of the above recital in the judgment, the rights of the bank to the moneys in the present suit were adjudicated, and that it is now estopped from asserting any claim to any part thereof. But the rights of the bank to the moneys owing to Whalen & Grant from the trustees were never even attempted to be adjudicated in that suit. No issue was made as to their rights in that suit. The entry of the default of the bank was not a final judgment from which the bank could have appealed, even if any rights it had had been adjudicated in the suit. To successfully invoke the doctrine of res adjudicaba, and assert that the bank is estopped by the judgment in that case from claiming any right to the moneys now in dispute, it must be shown that such judgment was final and certain as to what was adjudicated and determined by the judgment. (Freem. Judgm. § 251; Herm. Estop. §§ 47, 252; Ricketson v. Compton, 23 Cal. 650; Scotland v. East Branch Min. Co., 56 Cal. 625; Russell v. Place, 94 U. S. 610.)

In Russell v. Place the court says: “An estoppel must be certain to every intent, and if, upon the face of the record, anything is left to conjecture as to what was necessarily involved and determined, there is no estoppel. ’ ’ But the suit of Whalen & Grant being purely an action at law, it is not certain by any means that the bank was obliged to appear therein because it was made a party, and set up a purely equitable defense. (Hought v. Waters, 30 Cal. 310; Ayres v. Bensley, 32 Cal. 620; McCreary v. Cases, 45 Cal. 128; Hills v. Sherwood, 48 Cal. 386.)

The appellants contend that the bank acquired nothing by virtue of the assignments to it by Whalen & Grant of the moneys coming to them under the contract with the trustees,, for the reason that the contract itself provided that they should not assign any interest therein without the written consent of the trustees or the architect. We think the clause in the contract under discussion did not prevent, and was not intended to prevent, the giving of orders by Whalen & Grant on the trustees for money due thereunder. It was evidently intended by this clause to prevent Whalen & Grant from subletting the contract, or any part thereof, without the consent of the trustees or the architect. This clause was inserted for the protection of the trustees. They have interposed no objection to these assignments. It does not now lie in the mouths of Whalen & Grant to repudiate these assignments after having obtained thereby the bank’s money, to enable them to carry out their contract with the trustees; and, as the appellants stand in the shoes of Whalen & Grant, it is difficult to see how they can assert rights and defenses against the bank that are not allowable to Whalen & Grant.

Appellants contend that the assignments made'by Whalen & Grant were void as to them, because they were not acknowledged; that they contained no affidavit as to the ~bona fides of the parties, and were not hied with the clerk and recorder of the county wherein Whalen & Grant resided. This contention, 'is based upon the theory that the law in relation to chattel mortgages is applicable to the execution of these assignments. Whalen & Grant assigned to the bank sufficient of the money coming to them from the trustees to pay the amount advanced by the bank to Whalen & Grant to enable them to carry out their contract with the trustees, and, in the assignments, authorized the bank to collect and receipt for the same. At the same time they delivered the building contract between themselves and the trustees to the bank, as collateral security. The most they did by these assignments was to assign to the bank the right to recover that amount of money from the trustees. They assigned a chose in action which was defeasible and conditional. It was not such personal property as was capable of delivery, or of any other delivery than was made. We do not think this was such personal property as is contemplated by our statutes relating to chattel mortgages of personal property. (Jones Chat. Mortg. § 278, and authorities cited; Howe v. Jones, 57 Iowa 138, 8 N. W. 451, and 10 N. W. 299; Lawrence v. McKenzie (Iowa), 55 N. W. 505.)

There are other errors assigned, but we think the treatment above renders it unnecessary to discuss them. With the treatment above, they become immaterial. The judgment and order appealed from are affirmed.

Affirmed.

DeWitt, J., concurs. Hunt, J., having tried the case in the court below, did not sit in the hearing of this appeal.