Garland v. Harrington , 51 N.H. 409 ( 1871 )

FostbR, J.

It appears by the case that the defendant, being in the service of the Concord railroad, his employment being “ by the day, payment being made monthly by the company,” and being indebted to John Morrissey in the sum of §12.18, on the 11th of August, 1870, made an assignment to said Morrissey of all the pay, wages, money, debts, and demands then due, and which should become due prior to the 1st of November, from the Concord Railroad Co. to the defendant, for labor and services, &c.; and that, on the 1st day of November, 1870, the defendant, still being indebted to the said Morrissey or to Morrissey & Co., made a further assignment to Morrissey & Co. of “ a certain debt due me from the Concord Railroad Corporation, amounting to the sum of whatever my wages may be during the time specified, and also all sums that may become due for labor performed during the months of November and December, 1870, and January, 1871,” * * “ the consideration of the assignments being, what was due at the time, and what might become due for goods afterwards delivered ” to the defendant, by Morrissey and Morrissey & Co., who sold and delivered goods to the defendant on the security of the assignments of his wages subsequently to be earned.

There being no doubt about the sufficiency of the consideration for these assignments, the only question seems to be, whether, at the dates of the respective .assignments, there was any interest, claim, right, or thing capable of being assigned.

And it seems to be very clearly settled that, in case of the assignment of a debt, it is not necessary that the debt should be due to the assignor at the time of the assignment, in order to protect the rights of the assignee from an attachment against the assignor ; but a debt after-wards to accrue may be effectually assigned. Drake on Attachment, secs. 612, 61B.

In Clarke v. Adair, cited by Mr. Justice Duller in Master v. Miller, 4 D. & E. 343, Debray, an officer, drew a bill on the agent of a regiment, payable out of the first money which should become due to him on account of arrears or non-effective money. Adair did not accept the bill, but marked it in his book, and promised to pay when effects came to hand. Debray died before the bill was paid, and the administratrix brought an action against Adair for money had and received.

It was allowed by all parties that this was not a bill within the custom of merchants; but Lord MaNSField said, — “ It is an assignment for valuable consideration, with notice to the agent, and he is bound to pay it.” He said he remembered a case in chancery where an agent, under like circumstances, had paid the money to the administrator, and was decreed, notwithstanding, to pay to the person in whose favor the order was drawn.

It is urged by the plaintiff that when Harrington made the assignments, be had nothing to assign but a bare possibility, which iá not assignable; but in the case just cited, the assignment was of money that might become due.

It is undoubtedly true, as said by Shaw, C. J., in Mulhall v. Quinn, 1 Gray 107 (cited by the plaintiff), that “ none of the cases go so far as to hold that the mere possibility of being again employed by the city [that had once before employed tlie assignor] and of earning wages under that employment at a future time, is capable of being assigned.” But he adds, — “ The debt may be conditional, uncertain as to amount, or contingent; but to be the subject of an assignment, there must be an actual or possible debt, due or to become due. The assignment of an unliquidated balance is good ”—citing Crocker v. Whitney, 10 Mass. 316. The cases of Hartley v. Tapley, 2 Gray 565, Taylor v. Lynch, 5 Gray 49, Taylor v. Collins, 5 Gray 50, Lannan v. Smith, 7 Gray 150, and Wallace v. Chair Co., 16 Gray 209, cited by the claimant, are precisely in point in support of this doctrine;—and see Bancroft v. Marshall, 16 N. H. 246.

In the present case, Harrington was in the actual service of the railroad corporation at' the date of the first assignment, and so continued until after the service of the writ in this cause.

In Weed v. Jewett, 2 Met. 608, the assignor was in the actual employment of the corporation summoned as bis trustee — it did not appear whether for a certain time, or indefinitely — and the assignment was held good; — so, also, in Emery v. Lawrence, 8 Cush. 151.

In Brackett v. Blake, 7 Met. 335, the true principle and the proper distinction is said to be, — “ If a party is under engagement for a term of time to which a salary is affixed, payable quarterly, especially if he has entered upon the duties of his office, although at any time liable to be removed, he has an interest which may be assigned.”

So, also, it is said, in Cutts v. Perkins, 12 Mass. 212,—“ It makes no difference if, instead of a debt now due, it is of money expected to become due at some future time to the assignor, it appearing that there was an existing contract upon which the debt might arise — see, also, Payne v. The Mayor and Aldermen of Mobile, 4 Ala. 333; Tucker v. Marstellar, 1 Cr. C. C. 254.

It is said that these assignments were not accepted by the railroad company. It appears from the case that the railroad corporation had notice thereof, their treasurer having twice, at least, paid the claimant a portion of the defendant’s wages on account of the assignments. No formal acceptance by the corporation is necessary to the establishment of the rights of the assignee. If the assignment is valid, this court, after notice to the assignor’s debtor, will protect the equitable interest of the assignee, both against the assignor and against the claims of attaching creditors. Metcalf on Contracts 187; 1 Pars. Con. (5th ed.) 226; Conway v. Cutting, 51 N. H. 407.

Trustee discharged.