Leon Warrington v. Ray Dawson

798 F.2d 1533, 2 U.C.C. Rep. Serv. 2d (West) 1, 1986 U.S. App. LEXIS 29812

• Court: Court of Appeals for the Fifth Circuit
• Decided: September 9, 1986
• Docket: 85-4276
• Status: Published

Opinions

GOLDBERG, Circuit Judge:

Dramatis Personae

RAY DAWSON (defendant-appellee): Farmer, “good ol’ boy,” and hero of this tragi-comedy.

LEON WARRINGTON (plaintiff-appellant): Financier, business associate and father-in-law of John Reitz, infra.

JOHN REITZ: Business associate and son-in-law of Leon Warrington, supra; none-too-competent operator of Reitz Dusters and Sprayers, Inc. (“Reitz, Inc.”).

GEORGE GREEN: President of Valley Bank; pillar of the community.

LUETTA DAWSON: Wife of Ray Dawson; supporting role in the telephone call scene.

JUNE KIND: Secretary at Reitz, Inc.; supporting role in the telephone call scene.

Act I

The curtain rises on a small town in Mississippi. It is April, 1980, and John Reitz is wondering how to make a go of his failing cropdusting business. Deciding that a fresh infusion of cash is the best answer, he and his father-in-law, Leon Warrington, head down to the Valley Bank of Rosedale.

At the bank they are received cordially by the President, George Green. They have all played this scene before. Green states that the bank will require additional security before loaning any more money to Reitz, Inc. Reitz offers to assign Ray Dawson’s account with Reitz, Inc. to the bank. That sounds fine to Green, so he takes an assignment of the Dawson account and accepts a promissory note for $13,360.27, signed by Reitz and Warrington as officers of Reitz, Inc. As a favor to his son-in-law, Warrington also signs a personal guaranty on the back of the note, as he has done several times before. Green gives Reitz an account acknowledgment for Dawson to sign. Exeunt.

Act II

Several weeks pass, and the bank has still not received Dawson’s account acknowledgment. The bank telephones Warrington and threatens to foreclose on the Reitz, Inc. note unless Dawson signs the acknowledgment. “I’ll be right down,” says Warrington.

At the bank, a secretary types up a new letter of acknowledgment for Dawson to sign. The letter is on Valley Bank stationery, with “George W. Green, President” imprinted at the top. It says:

April 22, 1980

Ray Dawson

West Helena, Ark.

Dear Mr. Dawson,

It is our understanding that you owe in excess of $18,000.00 to Reitz Dusters and Sprayers Inc. If this is correct, please indicate by signing below that you will make all checks payable on this account to Reitz Dusters and Sprayers Inc. and The Valley Bank in compliance with our lien on this account.

Thank you.

Sincerely,

George Green

The letter is signed by George Green; there is also a space for Ray Dawson’s signature. Warrington takes the letter, hops into his pickup truck, and roars off.

The scene shifts to a rice field in Arkansas. Ray Dawson is out in the middle of the field on his tractor, about a mile from the highway, planting rice. It is a nice, sunny day, and Dawson is thinking pleasant thoughts. He does not have his reading glasses with him, because he is not planning to read anything out there on the rice field.

Suddenly, out of nowhere, Warrington roars up, trailing a cloud of dust. Dawson gets down off his tractor. Warrington hands him the letter and says “Reitz, Inc. has borrowed some money from Valley Bank and put up your account receivable as collateral. You should sign this.” Dawson cannot read the letter, since he does not have his reading glasses with him, but he signs it anyway. Warrington takes the letter, hops back into his pickup truck, and roars away. Dawson gets on his tractor and heads back into the rice field, muttering under his breath “What was that all about?”

Act III

It is several months later, and the Dawsons are paying their bills. Ray has a vague recollection that their checks to Reitz, Inc. are supposed to be made out differently now, so his wife Luetta, the bookkeeper in the family, telephones Reitz, Inc. to find out what to do. June Kind, secretary at Reitz, Inc. answers the phone and confers with John Reitz. He says: “Tell her to make it out to Reitz, Inc.” Ms. Kind relays this message to Mrs. Dawson, who makes out the check as instructed. During the course of the next year or so the Dawsons pay between $50,000 and $100,000 to Reitz,. Inc. in this manner.

Act IV

In February, 1981, the situation begins to deteriorate rapidly. Reitz, Inc. defaults on the promissory note held by the Valley Bank. Pursuant to his personal guarantee on the note, Warrington assumes liability for it and pays off the amount due. In return, the Valley Bank assigns all of its rights in the promissory note — including the Dawson account — to Warrington, who now stands in the shoes of the bank.

There has apparently been a falling-out in the Reitz family, for Warrington and Reitz are no longer related as father-in-law to son-in-law. Warrington demands payment from Reitz, Inc. under the note and from Dawson on the account. Receiving none, Warrington brings suit against both. Reitz, Inc. declares bankruptcy and is removed from the suit. Dawson responds that he has already paid everything he owed to Reitz, Inc. once, and would rather not do so twice. Warrington is unmoved. “See you in court,” he says.

Act V

Thus it is that this little human drama, like so many others before it, ends up in the courtroom. On February 28, 1985, the case went to trial in the U.S. District Court for the Northern District of Mississippi, Biggers, J.

Warrington, the plaintiff, put George Green on the witness stand and also testified on his own behalf. Dawson, the defendant, testified on his own behalf and put on his wife and Douglas Turner, a former commercial pilot at Reitz, Inc.

From Warrington’s own testimony it is clear that his presentation of the acknowledgment letter to Dawson was not an occasion for much discussion:

Q. And threatened with foreclosure, you took a piece of paper and went over to Mr. Ray Dawson out in the field and handed him that piece of paper?

A. Yes, sir.

Q. Got off — him off a tractor where he was working?

A. Yes, sir.

Q. And I believe, according to your previous testimony, there was very little conversation at all between you and Mr. Dawson, is that right, sir?

A. Yes, sir.

Q. You just handed him a piece of paper and told him that you wanted him to sign it to acknowledge what he owed Reitz Dusters?

A. Yes, sir.

Dawson’s account was one of trust betrayed:

I knew Leon and I knew John, and I ■ never dreamed they would put something like that in front of me.

I had too much confidence in the people that I was fooling with.

Q. You signed it to verify an account, is that your statement?

A. Yes, sir.

Q. Okay. And you realized that you were giving someone a verification of account for some purpose?

A. Yes, sir. I gave a friend a verification of account.

Q. Okay. And you would not verify something for a friend or anyone if it was not true, would you?

A. I have learned a lot.

After hearing the evidence presented at trial and considering the arguments of counsel, the trial court found that Warring-ton had “wholly failed to prove that the bank provided Dawson with adequate notice of the assignment.” The court stated that the bank employed “suspect methods” of appraising Dawson of the assignment, that the bank’s failure to provide Dawson with a copy of the account acknowledgment was a “cardinal flaw” in Warring-ton’s argument, and that Dawson should have had “more than just a fleeting glance” at the document purporting to provide notice of an assignment of his account. Thus, the court found in Dawson’s favor and held that the case should be dismissed. “Let an order issue accordingly,” he wrote, and one issued. Exeunt all.

Critical Review

Were we writing strictly as drama critics we could only applaud this poignant little play. In our capacity as legal reviewers, however, we are moved to suggest revisions of several key passages. In sum, we agree with the trial court that the notice of assignment Dawson received was insufficient both as to the manner of notification and as to the content of the notification.

The situation presented in this diversity case is governed by Mississippi Code § 75-9-318(3) (1972):

The account debtor is authorized to pay the assignor until the account debtor receives notification that the amount due or to become due has been assigned and that payment is to be made to the assignee. A notification which does not reasonably identify the rights assigned is ineffective. If requested by the account debtor, the assignee must seasonably furnish reasonable proof that the assignment has been made and unless he does so the account debtor may pay the assignor.

The official Comments to the corresponding U.C.C. section elaborate as follows:

Subsection (3) clarifies the right of account debtor to make payment to his seller-assignor in an “indirect collection” situation (see Comment to Section 9-308). So long as the assignee permits the assignor to collect claims or leaves him in possession of chattel paper which does not indicate that payment is to be made at some place other than the assignor’s place of business, the account debtor may pay the assignor even though he may know of the assignment____

Subsection (3) requires reasonable identification of the account assigned and recognizes the right of an account debtor to require reasonable proof of the making of the assignment and to that extent validates such requirements in contracts or purchase order forms. If the notification does not contain such reasonable identification or if such reasonable proof is not furnished on request, the account debtor may disregard the assignment and make payment to the assignor.

U.C.C. § 9-318 comments 3, 5 (1972).¹ Mississippi Code § 75-1-201(26) (1972) provides a gloss on the requirement of notice: “A person ‘notifies’ or ‘gives’ a notice or notification to another by taking such steps as may be reasonably required to inform the other in ordinary course____” (emphasis added). Thus, in order for there to be an effective assignment under § 9-318(3), the account debtor must be notified that the account has been assigned and must be directed to make payment to the assignee rather than the assignor. The notification must reasonably identify the rights assigned and, if the account debtor is an ordinary consumer, the manner and content of notification must make sense to an ordinary consumer. Surety Savings & Loan Co. v. Kanzig, 53 Ohio St.2d 108, 372 N.E.2d 602, 605 (1978).²

As an initial matter, it is useful to ponder where the “notification” Dawson received fits within the usual categories of oral and written notification. It appears to us that Dawson in fact received less notice than would have been provided by either a proper oral or written notification. Warrington’s statements out in the rice field did not amount to oral notification because, according to his own testimony, he merely told Dawson that “Reitz had borrowed some money from Valley Bank and that he was — they had put up his account receivable as collateral and he should sign this.” Tr. at 65. Since Dawson did not have his reading glasses he could not read the letter; he had about the same written notice as he would have had if the postman had delivered a certified letter to him, asked him to sign a receipt for it, and then taken the letter away.³ Normally, of course, when one “receives” a written communication one gets to keep it, “to have and to hold”⁴ it. In construing the “reasonable notification” requirements of Mississippi Code § 75-9-504(3) (1972) (notice before sale of collateral), the Mississippi Supreme Court has concluded that oral notice is insufficient. McKee v. Mississippi Bank & Trust Co., 366 So.2d 234, 237-38 (Miss. 1979). As for written notice, the court stated that

If notice in writing is personally delivered to the debtor, or if it is sent by mail to the debtor’s address (whether actually received by the debtor or not), such personal delivery or sending by mail will satisfy the requirement of notice as far as the contents of the notice are concerned.

Id. at 238.⁵

As noted above, U.C.C. § 1-201(26) contemplates that a person who “notifies” or “gives” notice to another will take “such steps as may be reasonably required to inform the other in ordinary course.” Courts have interpreted this provision to require more than a formal gesture of notification. In Mallicoat v. Volunteer Finance & Loan Corp., 415 S.W.2d 347 (Tenn.Ct.App.1966), the court observed that “The requirement of notice is for the benefit and protection of the debtor” and stated that “This provision of the Act should be construed and applied in a manner to effectuate this salutary purpose____”⁶ The court went on to quote an earlier Tennessee case as follows:

Notice which is a mere gesture is not notice. The means employed must be such as one desirous of actually informing the absent party might reasonably adopt. Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865.

Mallicoat, 415 S.W.2d at 351 (quoting Burden v. Burden, 44 Tenn.App. 312, 313 S.W.2d 566 (Tenn.Ct.App.1957)). Similarly, in Bank of Salt Lake v. Church of Latter Day Saints, 534 P.2d 887 (Utah 1975), the court found that notice to a clerical employee could not reasonably be construed as notice to the church. Where the bank had no direct dealings with the church, and had relied completely on what the assignor said and did, it had not taken “such steps as could be reasonably required to inform the Church of these assignments.” Id. at 891.

In the present case the district court found that “the bank employed suspect methods of apprising Dawson of the assignment.” Memorandum Opinion at 6. We agree. Waving a letter before a man in a rice field is not a reasonable way to notify him of an important change in his property rights.⁷ Dawson had no reason to be prepared for a business discussion out on his rice field, and the evidence indicates that he was at a distinct disadvantage when obliged to do so.⁸ Since Dawson did not have his reading glasses with him, and since Warrington did not leave him with a copy of the assignment notice, Dawson relied heavily on Warrington’s representations in signing what he thought was merely a routine account verification.⁹ “I gave a friend a verification of account,” said Dawson at trial. Tr. at 146. The situation here is not altogether unlike that in Weller v. A.T. & T., 290 A.2d 842 (Del.Ch.1972), where a 94-year-old woman of infirm mind and body let a trusted “friend” open her mail and handle her financial affairs. Mrs. Weller was prevailed upon by her “friend” to sign a form that enabled him to open a joint trading account in their names. Id. at 844. The court concluded that

[I]n light of her reliance on the perpetrator of the acts which deprived her of title to her securities and her own age and decrepitude ... I do not think Mrs. Weller can be charged with unreasonable action in not checking her accounts from time to time. I therefore conclude in view of all of the surrounding circumstances that Mrs. Weller did not have the required statutory notice of Mr. Jumper’s dishonesty until February 19 or 20, 1970, and that she thereafter notified the issuers of her stolen securities within a reasonable time.

Id. at 845. In the present case, of course, Dawson is a healthy and intelligent man. Still, his situation is analogous to that in Weller. Without his glasses he could not see properly when, at the urging of his apparent friend Warrington, he signed what was supposed to be a routine account verification.¹⁰

Even if the bank had employed proper means of notifying Dawson we would not be persuaded that its letter of assignment “reasonably identified the rights assigned.” We note first that the letter does not state in so many words that an account has been assigned, but merely refers obliquely to “our lien on this account.” While it may be that under U.C.C. § 9-318 an ordinary consumer is charged with understanding a proper notice of “assignment,” it is not all clear that he is also presumed to know what a “lien” is.

The trial court found as a fact that “Ray Dawson farms four tracts of land located in Arkansas and Mississippi. Each tract that Dawson farms is maintained as a separate corporation.” Memorandum Opinion at 2. The court further found that “the testimony of Ray Dawson and defendant’s exhibits entered into evidence at trial clearly establish that Dawson maintained four separate corporate accounts with Reitz, Inc.” Id. at 7. The assignment letter, however, speaks simply of “this account” and reads as though Dawson individually had an account with Reitz, Inc.: “It is our understanding that you owe in excess of $18,000.00 to Reitz Dusters and Sprayers Inc.”¹¹ Thus the court concluded that “the account acknowledgment per se does not reasonably identify the rights assigned.” Id.

Other courts have reached similar conclusions. In Progressive Design, Inc. v. Olson Brothers Mfg. Co., 263 N.W.2d 465 (Neb.1978), defendant Olson Brothers received a letter purporting to assign “your contract with [Progressive Design, Inc.].” Id. at 467. At the time, Olson Brothers had several contracts with Progressive. The court noted that .

The letter of August 14, 1970, did not identify the contract by date, or by the type or kind of contract, nor did it refer to the product or services contracted for, nor even the amount of money involved. It did not indicate whether performance or only payment had been assigned.

Id. at 468. The court accordingly held that the notice of assignment had not sufficiently identified the rights assigned. Similarly, in Bank of Salt Lake v. Church of Latter Day Saints, supra, the court based its holding of insufficient notice partly on the fact that the bank had duplicated some of the invoice numbers on its notices of assignment; another invoice greatly overstated the amount assigned; and yet another invoice listed a receivable from a business entity not a party to the lawsuit. 534 P.2d at 891. Cf. Citizens State Bank of Corrigan v. Jackson Corp., 537 S.W.2d 120 (Tex.Civ.App.1976) (notice on invoices to “make checks payable to” a bank did not reasonably • identify any rights assigned).

Finally, even if the bank had used both a proper manner and content of notification, we would still be troubled by the fact that the bank never objected while, over the course of a year or more, Dawson’s corporations paid between $50,000 and $100,000 to Reitz, Inc. by checks made payable solely to Reitz, Inc. The district court found that “Throughout this period The Valley Bank never complained about the way payment was made to Reitz, Inc.” Memorandum Opinion at 4. As this court noted in Estate of Haas v. Metro-Goldwyn-Mayer, Inc., 617 F.2d 1136, 1140 (5th Cir.1980), “even though an account debtor is aware that a valid assignment has been made, if the account debtor continues to pay the assignor and the assignee does not object, the account debtor is not bound by the assignment.” Cf. Bank of Salt Lake, 534 P.2d at 891; First National Bank v. Board of Education, 68 Ill.App.3d 21, 24 Ill.Dec. 670, 673, 385 N.E.2d 811, 814 (1979); First Trust and Savings Bank v. Skokie Federal Savings, 126 Ill.App.3d 42, 81 Ill.Dec. 246, 248, 466 N.E.2d 1048, 1050 (Ill.App.Ct.1984).

The critic’s function having been performed, we AFFIRM the decision of the district court.

AFFIRMED.

1 . See Estate of Haas v. Metro-Goldwyn-Mayer, Inc., 617 F.2d 1136, 1140 (5th Cir.1980):

Thus, even though an account debtor is aware that a valid assignment has been made, if the account debtor continues to pay the assignor and the assignee does not object, the account debtor is not bound by the assignment. See Ertel v. Radio Corporation of America, 261 Ind. 573, 575, 307 N.E.2d 471, 473 (1974).

2 . Warrington challenges the trial court’s ruling as “clearly erroneous,” Appellant’s Brief at 3, 8, and acknowledges that he has the burden of proof on the sufficiency of notice:

The burden of proving that an account debt- or received notification of an assignment and that the rights assigned were reasonably identified by that notification rests on the assignee. Progressive Design, Inc. v. Olson Brothers Manufacturing Co., 200 Neb. 291, 263 N.W.2d 465, 469 (1978).

Appellant's Brief at 10.

3 . The dissent places great emphasis on the fact that something "came to Dawson’s attention.” Dissenting Opinion, infra, text accompanying notes 1-3. But what came to his attention? There are (at least) three ways that adequate notice of an assignment could have come to Dawson's attention: (1) Warrington could have read to him, verbatim, the text of an adequate notice of assignment; (2) If Dawson had been able to read such a notice out on the rice field, he could have done so then and there; or (3) Warrington could have left Dawson with a copy of such a notice, to be read later by Dawson (with reading glasses on) or by someone else. Manifestly, none of these three approaches was pursued.

4 . On the use of this phrase, see the Dissenting Opinion, infra, note 5.

5 . Cf. Perdue Farms Inc. v. Motts, 459 F.Supp. 7, 18-20, 27-29 (N.D.Miss.1978) (construing statute of frauds provision of Mississippi Code § 75-2-201 (1972)).

6 . Id. at 350-51; cf. Chase Manhattan Bank (N.A.) v. State, 48 A.D.2d 11, 367 N.Y.S.2d 580, 583 (1975) (purpose of § 9-318 is "to protect the rights of an account debtor vis-a-vis an assignee"), aff’d, 40 N.Y.2d 590, 388 N.Y.S.2d 896, 357 N.E.2d 366 (1976).

7 . This does not mean that we depart from the time-honored principle that a man is presumed to have read, and will be held responsible for, an instrument that he signs in the absence of fraud, misrepresentation, or duress. Cf. N & D Fashions, Inc. v. DHI Industries, Inc., 548 F.2d 722, 727 (8th Cir.1976); Upton v. Tribilcock, 91 U.S. (1 OHO.) 45, 50, 23 L.Ed. 203 (1875); Southeastern Enameling Corp. v. General Bronze Corp., 434 F.2d 330, 334 (5th Cir.1970). In the present case, however, we conclude that, as detailed below, analogues of fraud, misrepresentation, and duress are present.

8 . The dissent observes that "It is no more remarkable to find a farmer in his fields than to find a banker in proximity to his vault.” Dissenting Opinion, infra, text accompanying note 3. But the reason a banker routinely signs assignment notices in such close proximity to his vault is that his is a desk job and he is in the business of signing papers and filling out forms. Farming is not a desk job, and a farmer is not ordinarily prepared, or required, to conduct his financial affairs out on a rice field.

9 . According to the dissent, if Dawson failed to become aware of the contents of the letter of notification, it was due "solely to his own negleet, carelessness, or sloth"! Dissenting Opinion, infra, text accompanying note 9. The dissent also suggests that Dawson would have suffered only "some slight inconvenience in stepping off his tractor to retrieve his reading glasses” and that “Dawson did not testify that he would have refused to sign the notification had he read and known its contents.” Id., text accompanying notes 11-12. But Dawson’s uncontradicted testimony at trial was that "I did not have my glasses out there," Tr. at 124, that “I was in a field that is located on the Phillip County line on Hwy. 1, back about a mile off the highway,” id. at 122, and that "If I would have read it, I would have not signed it because that was incorrect,” id. at 144.

10 . Cf. John Deere Co. v. Neal, 544 S.W.2d 514, 517 (Tex.Civ.App. 1976):

It is apparent from the record that Neal is an intelligent man but he is not shown to be so experienced in secured transactions as to be alerted by the facts in evidence that John Deere Company was in fact requesting payment to be made to it as assignee of the chattel paper. The cited section emphasizes the necessity of the assignee making its rights clear to a debtor____

11 . Dawson testified that at the time he signed the notice of assignment his farming corporations actually owed only $9,000 to Reitz, Inc. Tr. at 124.