Gates v. Kerby

NAPTON, J. David R. Kerby, the appellee, sued Gates by petition and summons in the Circuit Court of Macon county, at the May term, 1848, upon a note for one hundred dollars, executed by said Gates to one A. Q. Kerby on tbe 15th February, 1845, and payable the 25th December, 1847. On the hack of this note there was the following assignment. “This.the second day of [111] February, 1845, I assigned the within note for value received to David R. Kerby. Asa Q. Kekby.” Upon the trial it appeared that this assignment was executed the day after the note was given — that the assignment was made in consideration of an understanding by said David R. Kerby, the assignor’s brother, to remove him (Asa Q.) to Putnam county and there furnish him with corn, &c. That one Thomas G-unn then had a judgment against the assignor— that the assignor informed the defendant, Gates, of the assignment, but did not recollect when. One Holstead testified that he was present when the note sued on was executed — that the subject of A. Q. Kerby’s indebtedness was mentioned, and it was proposed to the assignor to give the note in the name of some other person to secure it from! his creditors, but the assignor (A. Q. Kerby) replied, “that he had a place for the note, that he intended to assign it and get for it money to enter land in Putnam county, where he was about to go.” The defendant read in evidence a copy of the proceedings in the case of Gunn v. Gates. From this record it appears that Gunn had recovered a judgment against A. Q. Kerby for about $100, and that Gates was summoned as a garnishee — that interrogatories were propounded to said Gates, in answer to which he admitted indebtedness to Kerby, by a note, but stated that he had good reason to believe and did believe that said note had been assigned before the service of said garnishment. Judgment was given against Gates. Instructions were asked in relation to the supposed fraud designed upon the creditors of A. Q. Kerby, which were given. The instructions in relation to the assignment and the payment under the garnishee process, asked by the defendant, were refused. These instructions or opinions were substantially, that the judgment in the case of Gunn & Kerby, against Gates as garnishee was a bar to this action ; and that it was the duty of the plaintiff, if he wished to protect his interest as assignee, to have interpleaded in that suit. The court declared the law to be. 1. That if the garnishee was summoned after the assignment, and had notice of the assignment at that time, the plaintiff in this suit was entitled to recover. 2. That it was not the plaintiff’s duty to interplead in the case of Gunn v. Kerby, unless he had notice of the garnishment. 8. If the note was assigned-to the plaintiff before the defendant was garnisheed, the plaintiff -was entitled to recover. The plaintiff had a verdict and judgment. It was held in this court in the case of Bates v. Martin, 3 Mo. R. 367, that a payment.of a note to the payer, after assignment, although no notice of the assignment was given, would not discharge the maker’s liability to the assignee. This opinion was based upon the peculiar language of our statute, which provided that in actions by an assignee, the maker should be allowed every just set-off and discount against the assignor before assignment. The most equitable doctrine is that which required the assignee to give notice, if he desired to be relieved from the effect of any transactions between the assignor and the maker of the note, subsequently to his becoming the holder of the security. St. Louis Perp. Ins. Co. v. Cohen, 9 Mo. R. 442. The case of Wolf v. Cozzens, 4 Mo. R. 431, is not reconcilable with the previous one of Bates v. Martin, unless it turned upon a question of fraud, which is obscurely hinted at in the opinion. In the present case the maker of the note was notified of the assignment, before he was summoned as a garnishee, and that assignment constituted a valid defense to the garnishment. That this defense proved to be unavailing-in the spit of Gunn v. Kerby cannot affect the rights of the assignee, who is now plaintiff. He had his remedy and may not have lost it yet ,• but if he has, it has not been.the fault of the present plaintiff’.(a) Judgment affirmed. Footnotes [a] (a) 1 Wag. Stat. 668, §§-25, 26; Weil v. Tyler, 38 Mo. K. 559: Funkhouser v. Howe, 24 Mo. R. 44; Dobbyn v. Hyde, 37 Mo. R. 114; Perry v. Litten, 37 Mo. R. 279.