Keep v. Sanderson , 2 Wis. 42 ( 1853 )

By the Court,

Crawfokd, J.

The defendant in error, Geo. B. Sanderson, was summoned as a garnishee in a proceeding by attachment, instituted by John M. Keep against Thomas C. Manchester and Charles R. P. Wentworth. The garnishee appeared in the Circuit Court for Bock county, and from his disclosure it appeared that he held a large amount of real estate, goods and merchandize, accounts, notes and other securities, to the amount of about fifteen thousand dollars, all of which, or the proceeds there- ■ of, were in his hands at the time of his disclosure, and that he held the same by virtue of an assignment thereof to him as assignee, made by Manchester and Wentworth, for the benefit of certain of their creditors.

The plaintiff in the action, Mr. Keep, recovered judgment against the principal defendants, Manchester and Wentworth, for the sum of $3,507.20 and costs, and thereupon moved the court for judgment against the garnishee, upon his disclosure. This was refused by the Circuit Court, and a judgment in favor of the garnishee, (defendant in error,) for costs, was rendered.

The principal enquiry is, whether assignment to the defendant in error is a protection to him. as gar. nishee ? And this depends upon the validity of the instrument. From the response it appears that the garnishee obtained the possession of the assigned property immediately after the execution of the deed of assignment, and at a time when the assignors, Manchester and Wentworth, were in failing circumstances, and apprehended proceedings at law by one their creditors, (John M. Keep, the present in error,) for the recovery of his debt.

It also appears from the deed of assignment, which is embodied in the disclosure of the garnishee, that he is authorized to sell and dispose of the assigned property “ upon such terms and conditions as in Ms judgment may appea/r best, and most to the interest of the parties concerned

The judgment of the assignee is here made the criterion by which his authority and discretion in regard to the sale and disposition of the assigned property is to be measured.

It is competent for debtors in failing circumstances to make an assignment of their property for the payment of their debts, but in doing so they are not at liberty to restrict the liability of their assignee, or extend his powers beyond the limits which are prescribed by law; because the effect of a valid assignment is to place the property beyond the reach of the ordinary process of the courts resorted to by creditors to enforce their claims, and hence the liability of the assignee to those creditors ought not to be curtailed beyond that provided by law, at the mere volition of the assignor and assignee.

Suppose that in the judgment of the assignee it would be to the best interests of the parties concerned to dispose of any portion of the property on credit, could it be truly said that under this instrument he has not the power to do so? We think it could not, because the language used in the deed— “upon such terms and conditions” — is sufficiently comprehensive to include the power to sell upon credit. A sale is either for cash or upon credit, and the price aSree(^ uPon) as 'well 88 'll16 time at wMcli the payment shall he made, is necessarily included in the terms and conditions of the sale. (Vide Le Roy vs. Beard, 8 Howard, 451.)

At the last term of this court in the case of Hutchinson et al. vs. Lord, 1 Wis. R. 286, we held that an assignment for the benefit of creditors, which empowered the assignee to sell “ upon such terms, and for such prices,” was equivalent to a power to sell upon credit, and we think the reasons assigned by us for our conclusion in that case, are equally applicable in this. Whenever the assignee can, within his authority, postpone the payment of the price of assigned property sold by him, he thereby necessarily delays the creditors interested in such assigned property, in the collection of their demands, and inasmuch as the assignor must be deemed to have intended the legal consequence flowing from every provision contained in his assignment, such a provision as that of which we now treat, must be taken as evidence apparent on the face of the instrument, of the intent with which it was executed.

There was no issue joined in this case, to be submitted to a jury, and the question was one of law, addressed to the court, on the whole answer of the garnishee, whether he was liable. We hold that the assignment in this case does empower the assignee to sell upon credit, and is clearly within the principle decided in Hutchinson et al. vs. Lord, and that the Circuit Court should have held the defendant in error liable for the property (or its value) held by him, regardless of the assignment, which, by its very terms, must be esteemed fraudulent in law and in fact.

It is useless, in this case, to decide any question touching the specific property included in the assignment, after having decided that it is invalid ; hut if it were necessary, we think the cases of Rundlett vs. Dale, 10 New Hamp. R. 458, and Beard vs. Kimball, 11 id. 471, present the law applicable to the case.

The case of Wilkes and Fontaine vs. Ferris, involved the construction of an assignment for the benefit of creditors, in which the language used was, “ all the goods, property, wares, merchandizes, chattels, vessels, debts, sum and sums of money, claims and demands and effects belonging to and now due and owing to the said H. C. or to which and in which he has any right, property, claim or demand, which said goods, wares and merchandizes hereby granted and sold, are particularly described and enumerated in the schedule A, signed by the said H. C. and to these presents annexed,” &c.

P^The court say “ this was not in fact a general assignment of all C.’s estate, for though the words in one place be general, yet the assignment immediately goes on to specify by a reference to the schedules annexed, the specific articles of property assigned, and it therefore could operate only upon the articles specified-Wilkes et al. vs. Ferris, 5 John. 335; see also Munro vs. Allaire, 2 Caine's, 327.

The judgment of the Circuit Court must be reversed, and the cause remanded for further proceedings, according to law.