Clarke v. Hogeman

Johnson. Judge, delivered the opinion of the Court: Syllabus 1, The first question presented is : Could one member of the firm assign the claim, without the consent of the other? In the absence of any express stipulation to the contrary, each partner possesses aii equal and general power and authority, in behalf of the firm to transfer, pledge, exchange, apply or otherwise dispose of the partnership property and effects, for any and all purposes, within the scope and objects of the partnership, and in the course of its trade and business. Story on Part. § 101 and cases cited. This must be so from the very nature of a partnership; for, without such power, the business of the partnership could not be carried on successfully at all. Everett et al. v. Strong, 7 Hill 585. Did L. M. Wolcott, a member of the firm, assign to W.m C. Williams the claim set up in the petition ? From the evidence in this case there can be no doubt, that for a valuable consideration he did assign the identical claim, that was afterwards, or perhaps before, sued upon by Brown & Summers, on which they, in the name of Wolcott & Everett, recovered judgment, and which identical judgment was afterwards, [728] by the same L. M. Wolcott, assigned to the defendant, "W. H. Ilogeman. The assignment was properly made by the transfer of the attorney’s receipt. Judge Carr, in Elam v. Keen, 4 Leigh 333, speaking of the transfer of a bond by gift, said: “The bond itself could not be delivered, it was in court in the custody of the law. The receipt was its representative. We must presume, it described the bond accurately, and stated, it was received to be put in suit, and that when collected, the attorney would account for it, as in the case of the key, the delivery of this receipt ‘was the true and effectual way of obtaining the use of the subject.’ Speaking from my own experience, I should say, an attorney requires no better order for the payment of money, he has collected on a bond, than the receipt he has given for the bond; when he takes this in, with a receipt upon it for the money, he feels safe.” But in this case not only was the attorney’s receipt passed over to the assignee, but in the very words of the agreement, the “claim,” represented by the receipt, was transferred. That it was the property of the firm is apparent from the letter of the firm, written on the 29th day of May, 1861, in which they say, “we once had it in possession, but sold it, without any recourse upon us,” thus ratifying the assignment, made more than three years before, and refusing to pay clerk’s fees in the suit upon the claim. Syllabus 3. Did the assignment give the right to William C. Clarke, the petitioner, in the name of Wolcott & Ever-tt, the assignors, to pursue the debtors, and, in the name of said firm, to obtain judgment on said claim ? There can be no doubt of it. In Garland v. Richeson, 4 Band. 266, the Court of Appeals held, that the assignee of a bond, under our statute, does not acquire the legal title to the debt, but an equitable right, which, by virtue of the statute, he may assert at law in his own name, or in that of the original obligee for his benefit. Green, Judge, in the conclusion of his opinion said: “ Upon authority [729] therefor I conclude, that an assignee, under our statute, does not acquire the legal title to the debt, but the equitable right, which, by virtue of the statute, he may assert at law in his own name; and that he has his election to sue at law in his own name under the statute, or in the name of the original obligee, for his benefit, upon the strength of the legal title remaining in the obligee.” Wallop’s adm’rs v. Scarborough, et al., 5 Gratt. 1. It follows therefore, that Clarke had a right, in the name of the said Wolcott & Everett, to recover judgment against the debtors, and to pursue all his remedies, for the collection of the claim, in the name of the said firm. Billy Jones v. Witter, 13 Mass. 304. But it is said, that Clarke did not do it; that it was done by others. By whomsoever done, it enured to the benefit of the as-signee. Syllabus 4. The assignor of a judgment, or the claim on which it isfoundcd, and upon which judgment was recovered, has no control over it, nor of any execution on it taken out by the assignee. State on relation &c., v. Heroll, 6 Blackf. 444. Nor has such assignor anything to do with or about the claim, after assignment. Syllabus 5. The assignment to Williams being a valid one, transferred all the equitable right of Wolcott & Everett, or of L. M. Wolcott, in said claim to the said Williams, and the subsequent assignments transferred the equitable title to said claim to the petitioner Clarke. The assignment to Hogeman amounted to nothing, as it could not transfer the equitable title to him, there being none in the assignor. Nemo potest plus juris ad alium transferre quamipse habet. It is therefore unnecessary to consider, whether the assignment to Hogeman was properly or legally made, or not. Syllabus 6, The defendant Hogeman insists, that as he had no notice of the assignment to Clarke, he ought to be protected, claiming, under the circumstances it would be inequitable and unjust to hold, that Clarke is entitled to the judgment. There can be nothing'in this position. [730] The only party entitled to notice of the assignment, and 'the only party, who not having notice, for that reason would be protected, is the judgment debtor. If he had paid the claim to Wolcott & Everett, after the assignment and before notice thereof, he would have been protected, and the payment would have been good. Here if both assignments were valid, the equities being equal, the oldest would hold the claim. Neither by the assignment acquired the legal, but only an equitable title; and the maxim applies, qui prior esi tempore potior estjnre. Garland v. Richeson, 4 Rand. 270, per Green, Judge. Syllabus 7. The statute of limitations is set up by the defendant Hogcman as a bar to the claim of the petitioner. This is a defense that cannot avail him in this cause. The petitioner is not seeking to recover the claim from him; except as to the $94.00, he is not the debtor; and the statute of limitations is a plea, that the debtor, or the party against whom a claim is sot up, can rely upon, and he only. The debtor might plead it; but he has not done so in this case, as far as the record discloses. It is also said, that'Clarke, the assignee, is the same man, who endorsed the draft, and that he was named in the declaration and summons; and the intimation is made in the argument, though not very distinctly, that for that reason he could not be an assignee of the claim. A sufficient answer is, that Clarke was not the original debtor, and could therefore be an assignee of the claim ; and the fact, that he was named in the declaration and summons, cannot prejudice his right; no judgment was recovered against him, and even if there had been, as he was not the real debtor, but only collaterally bound, his right under the assignment would not thereby have been destroyed. As to the $94.00, paid to Iiogeman, the re'eord shows by the return on the execution, that this sum was collected by a sale of bank stock of the judgment debtor, Allen M. Smith, under an execution on the- judgment, and was paid to Laidley & Hogeman, the attorneys for the plaintiffs, Wolcott & Everett, on the 15th day of April [731] 1870. The assignment to Hogeman was in April, 1870, the day is blank; but it is probable that Laidley Hogeman received the $94.00, as attorneys for the plaintiffs, "Wolcott & Everett, before the said assignment, as a letter from Wolcott to them, enquiring about the claim, is dated on the 9th of April, 1870, at Memphis, Tenn. I do not think it proper here to make any decision as to that payment; leaving the parties, as to that, to their legal rights, whatever they may be. For the foregoing reasons, the decree, rendered in this cause on the 1st day of December, 1876, is reversed, ivith costs to the appellant, Win. S. Clarke against the appel-lee, W. H. Hogemau; and this court proceeding to render such decree, as the circuit court should have rendered, it is adjudged and ordered, that the petitioner, Wm. S. Clarke, by virtue of the assignment of Woleott & Everett to him of the claim against Clarkson, and Nock and Smith, upon which judgments were recovered against the said parties, and subsequently another judgment against the said parties and W. A. McMullan on a forthcoming bond, is entitled to be substituted to all the rights of said "Wol-cott & Everett to said claim, and said judgments, and to the lien in their favor, reported by Abram Burlew, as set out in the petition; and that, said petitioner, W. S. Clarke, recover against the said W. H. Hogeman, his costs about the prosecution of his suit upon said petition expended; and this cause is remanded to the circuit court of Ivanawlia county, to be further proceeded in, according to the principles, herein declared, and further according to the rules governing courts of equity. Tiie other Judges CONCURRED. DECREE KeVERSED, CAUSE REMANDED.