Cavett v. First National Bank ( 1934 )

Horth, District Judge.

The only question presented by this appeal is whether the defendant First National Bank of Cozad or the defendants Arthur Nelson and George Nelson are entitled to the proceeds of a car of lumber sold by the Standard Bridge Company of Omaha to the plaintiff, county of Morrill.

An examination of the record discloses that on or about July 24, 1931, the county of Morrill purchased a car of lumber from the Standard Bridge Company of Omaha for the agreed price of $1,434; that thereafter the Standard Bridge Company delivered to one E. G. Solomon of Omaha, through whom the defendants Arthur Nelson and George Nelson claim, a written assignment in the words and figures following: “Omaha, Neb., July 25, 1931. For value received, I hereby sell, assign, transfer and set over to E. G. Solomon all my right, title and interest in and to any and all moneys arising or coming to me from the county of Morrill, Nebraska, by reason of a certain claim No. - against the said county for bridge material amounting to one thousand four hundred thirty-four & no/100 dollars, which said claim was filed with the county clerk on the 24th day of July, 1931. At its own expense the Standard Bridge Company may collect the above sum and upon such collection hold the same for the assignee hereunder, and for the use of such money from this date until such assignee is fully repaid the Standard Bridge Company shall pay such assignee interest at the rate of 7 per cent, per annum from July 25, 1931, until paid in cash or registered warrants. And I hereby authorize, empower, direct and instruct the county clerk of said county to assign and deliver all warrants therefor to E. G. Solomon. Standard Bridge Company, Assignor, By J. H. Vastine, Auditor;” that attached to said assignment is a verified statement showing that the bridge material mentioned in the assignment corresponds to the materials for which the Standard Bridge Company filed its claim with the county clerk of Morrill county, Nebraska, on the 11th day of August, 1931; that the moneys invested in said assignment, by said E. G. Solomon, were funds belonging to the defendants Arthur Nelson and George Nelson, left by them with E. G. Solomon for investment by him for their account; that no notice of the assignment from the Standard Bridge Company to E. G. Solomon was given to the plaintiffs or either of them, nor did they or either of them have any knowledge of the existence of said assignment until December 26, 1931, when the plaintiff J. T. Cavett, county clerk, received a letter from Messrs. Morsman & Maxwell, attorneys for the defendants Arthur Nelson and George Nelson, dated December 24, 1931, in which they stated: “The Standard Bridge Company, under date of July 25, 1931, assigned to E. G. Solomon claim against Morrill county for $1,434, for bridge material, filed with you on July 24, 1931. This claim has been assigned to our clients Arthur Nelson and George Nelson of this city by the executor of the estate of E. G. Solomon, who died about a month ago;” that on August 11, 1931, said Standard Bridge Company filed with the county clerk of Morrill county its verified claim for $1,434, the purchase price of bridge material, the claim was allowed by the county commissioners of Morrill county on August 25, 1931, a county warrant was issued therefor payable to the Standard Bridge Company, or order, and on August 31, 1931, the Standard Bridge Company sold, indorsed and delivered said warrant to the defendant First National Bank of Cozad, it paying said Standard Bridge Company therefor the sum of $1,434; that at the time of the purchase by it of said warrant the defendant First National Bank of Cozad had no notice or knowledge of the assignment from the Standard Bridge Company to E. G. Solomon.

The district court found upon the issues joined by the defendants Arthur Nelson and George Nelson and the defendant First National Bank of Cozad that the latter was the owner of the county, warrant for $1,434 issued by the county of Morrill in payment of the claim for that amount filed by the Standard Bridge Company, and that the defendants Arthur Nelson and George Nelson have no right, title or interest therein, and entered judgment accordingly, and we find the judgment as rendered is supported by the evidence.

The decision of this court in Greeley County v. First Nat. Bank of Cozad, 126 Neb. 872, as expressed in the second and third paragraphs of the syllabus in that case, is controlling in this case, and the judgment of the district court is, therefore,

Affirmed.