Prather v. McEvoy ex rel. Nelson

Napton, J., delivered the opinion of the Court. This was a bill in chancery brought by Prather, the appellant, to restrain the collection of a judgment at law obtained against him by McEvoy for about ninety dollars. It appears from the bill, that McEvoy, a stone mason, brought suit against Prather, for some stone work done for him, amounting to some ninety dollars, before a justice of the peace; that the defendant offered as a set-off against the account, a note given by McEvoy to Blount & Baker, in the following terms: — “Due Messrs. B. & B. the sum of eighty-four dollars, which is to be paid in cut-stone work.— St. Louis, March 19, 1840. — John McEvoy.” On which, was the following endorsement: “For value received, we assign the within to J.V. Prather. — 20th March, 1841.— Blount fy Baker.” The set-off was not allowed by the justice, and on appeal to the Court of Common Pleas, it was also excluded, and the judgment of the Court of Common Pleas was affirmed by this Court. The judgment is now sought to be enjoined, upon the ground, that a demand has been made upon McEvoy, for stone work, to the amount of the note by Prather, and because of the insolvency of McEvoy. In Bothick’s Administrator vs. Purdy, (3 Mo. Rep., 82,) a note given for the payment of one hundred and eighty dollars in carpenter’s work was held to be not assignable, it not being a note for money or property, but for personal services. The same doctrine is held by the Supreme Court of Kentucky, in the cases of Halbert vs. Durigs, (4 Litt.Rep., 9,) and Henry vs. Hughs, (1 J. J. Marshall, 454.) We see nothing in the form of the present note to distinguish it from the one in Bothick vs. Purdy. Cut-stone work, like carpenter’s work, might mean work finished and delivered at the shop, as well as work put up at the residence, or other place designated by the obligee. It is as much a contract for personal service in the one case as the other. This view of the case prevents the necessity of alluding to the other grounds insisted on by the appellant. The judgment of the Circuit Court is affirmed.