Darling v. Andrews

Hoar, J. 1. The principal defendant made an assignment of all the wages due, or which might become due for two years, from the trustees, on account of the services of himself and his minor children, and the first question is on the validity and effect of this assignment. It was made upon the consideration of the agreement of the assignees to furnish and provide from time to time for the use of the assignor and his family provisions and goods upon credit, as he should need and require the same, to an amount not exceeding in any month the amount of the wages assigned. The assignment then provided that the assignees should have full power and authority, in the name of the assignor, but to their own use, to collect and receive the same and give valid discharges therefor; and that they should apply said wages, as they should receive the same, to the payment and satisfaction of said indebtedness and advances, and pay to the assignor the balance, if any should remain after paying and satisfying all said indebtedness and advances, and all such claims and liabilities as they might, have against him. . The assignment was lawful and valid, being of wages to be earned under a subsisting contract. Boylen v. Leonard, 2 Allen, 407. By its terms, the assignees were to apply the money received under it, “ as they should receive the same,” to the payment of their own advances, and pay the balance to the assignor. We think the just construction of this contract would require the payment of the balance to be made from time to time, as it was received. All that the assignees might receive above the amount due to them would therefore be received to the immediate use of the assignor, and the title of the assignees to that part of the fund could not prevail against the claims of creditors. [109] Macomber v. Doane, 2 Allen, 541. The fact that the balance was payable to the assignor from time to time, as received, distinguishes the case from Lannan v. Smith, 7 Gray, 150. The assignees should regularly have appeared or should have been summoned in as claimants of the fund. But they have been summoned as trustees, and have appeared and answered, and disclosed the extent of their equitable interest; and no objection is taken to the irregularity. The trustees are therefore to be charged for the sum of $12.89, being the amount in their hands above that which was due to the assignees. 2. There can be no doubt that the plaintiff’s claim, being for medical attendance and medicines furnished to the debtor and his family, is “ a demand for necessaries ” under Gen. Sts', c. 142, § 29, so that no deduction is to be made from the sum for which the trustees are chargeable by reason of the provisions of that statute. Wood v. O'Kelley, 8 Cush. 406. Trustees charged.