Wike v. Board of Trustees

49 S.E.2d 740, 229 N.C. 370, 1948 N.C. LEXIS 493

• Court: Supreme Court of North Carolina
• Decided: October 20, 1948
• Status: Published

Opinion

Barnhill, J.

In equity a present assignment of money having a potential existence but not yet due will operate on the fund as soon as it is acquired. Hence the remuneration plaintiff was to receive for the construction of the school annex was assignable. The fact the money was not then due only operated to postpone the liability of the debtor until the contingency happened and the money became payable. Godwin v. Bank, 145 N. C., 320, 328; Trust Co. v. Construction Co., 191 N. C., 664, 132 S. E., 804; Bank v. Jackson, 214 N. C., 582, 200 S. E., 444; 4 A. J., 239, 240. Restatement of the Law, Contracts, sec. 154.

The language used in the application for the school building contract performance bond is sufficient to constitute an assignment of the moneys to become due to plaintiff and his copartner as the work progressed and the balance due upon the completion of the contract.

The assignment was to secure not only the obligations assumed by the defendant under that bond, but also “any other indebtedness or liabilities of the undersigned (the contractors) to the Company, whether heretofore or hereafter incurred” by reason of the breach of that bond or “any other bond executed or procured by the Company on behalf of the applicant . . .” The Barker contract is listed in the application as one of the outstanding contracts in the process of performance. Any payment made by defendant by reason of its suretyship on plaintiff’s performance bond executed in connection with that contract is secured by the assignment, and defendant alleges that the letters written to the school board were to effectuate the assignment after liability thereon had accrued.

It follows that the allegations contained in defendant’s answer raise issues of fact upon which it is entitled to be heard. As these issues must be answered in order for the court to ascertain to whom the fund in controversy should be paid, the order striking the answer and the judgment on the pleadings must be held for error. Petty v. Insurance Co., 210 N. C., 500, 187 S. E., 816; Oldham v. Ross, 214 N. C., 696, 200 S. E., 393; Adams v. Cleve, 218 N. C., 302, 10 S. E. (2d), 911; Lockhart v. Lockhart, 223 N. C., 123, 25 S. E. (2d), 465.

The order and judgment entered in the court below must be vacated and the cause reinstated on the civil issue docket for trial.

Error.

Stacy, C. J., took no part in the consideration or decision of this case.