Baillie v. Stephenson

70 N.W. 660, 95 Wis. 500, 1897 Wisc. LEXIS 220

• Court: Wisconsin Supreme Court
• Decided: March 16, 1897
• Status: Published

Opinion

Newman, J.

The question in this case is, Whose were the moneys which were in the hands of Upham & Stephenson? Were they Dobie’s moneys, or did they belong to the Lcmd c& River Improvement Company? The proper answer to this question depends upon whether the transaction amounted, in equity, to an assignment of the fund to the improvement company. It, in the final analysis, all depends on the intention of the parties. If they intended it to be an assignment of the fund, equity will so treat it. In order to constitute an assignment in equity of a debt or chose in action, no particular form is necessary. Any order, writing, or act which makes an appropriation of the fund amounts to an equitable assignment of the fund. No writing is necessary. It may be by parol as well as by deed. It is sufficient if it amounts to a distinct appropriation of the fund by the debtor, and an agreement that the creditor shall be paid out of it. It may be either by giving an order, or by transferring the fund in such a manner that the holder of the fund is authorized to pay the amount directly to the creditor, without the further intervention of the debtor. Willard, Eq. Jur. (2d ed.), 463; Kingman v. Perkins, 105 Mass. 111; James v. Newton, 142 Mass. 366; Holbrook v. Payne, 151 Mass. 383; Trist v. Child, 21 Wall. 441; Peugh v. Porter, 112 U. S. 137. Such an assignment will be upheld in equity if it assigns a part only of the fund, and without the consent of the debtor (James v. Newton, supra), and although made before the creation of the fund (Peugh v. Porter, supra), and will be good against garnishment (Willard, Eq. Jur. 464; Kingman v. Perkins, supra). Dobie made a distinct appropriation of this fund, and directed it to be paid to the Land & River Improvement Company. Upham & Stephenson were authorized to pay it over to the improvement company without the further intervention of Dobie. The transaction was an equitable assignment of the fund, •and the moneys belonged to the Land <& River Improvement Company. Upham & Stephenson were not liable to garnishment at plaintiff’s suit.

By the Oourt.— The judgment of the superior court of Douglas county is reversed, and the cause remanded with ■directions to give judgment for the garnishees, dismissing the action, and in favor of the Land <& River Improvement Company for the fund.