Wakefield, Fries & Co. v. Parkhurst

Mr. Justice McCamant delivered the opinion of the court. 1-3. This record raises one controlling question: Did Moumal’s letter of March 19, 1915, operate as an assignment of the rentals to be collected in the future by plaintiff? Did he thereby lose control over the fund to such extent as to nullify his subsequent attempt to divert the fund to payment of a debt which he owed Messrs. Chamberlain, Thomas & Kraemer? It has been repeatedly held by this court that an order drawn on a specific and clearly designated fund may operate as an assignment of such fund: McDaniel v. Maxwell, 21 Or. 202, (27 Pac. 952, 28 Am. St. Rep. 740); Willard v. Bullen, 41 Or. 25, 33 (67 Pac. 924, 68 Pac. 422); Morris v. Leach, 82 Or. 509, 511 (162 Pac. 253). In Commercial National Bank v. Portland, 37 Or. 33, 39 (54 Pac. 814, 60 Pac. 563), an order was held ineffectual to operate as an assignment of the fund involved in that case. The question is one of intention of the parties : Pacific Coast Co. v. Anderson, 107 Fed. 973, 977 (47 C. C. A. 106). In 3 Pom. Eq. Jur. (3 ed.), Section 1282, it is said: “A mere letter, communication, or other mandate to the agent, depositary, or debtor, directing him to pay the fund to a designated person, will not of itself operate as an assignment, but it may be withdrawn or revoked at any time before the arrangement is completed, by information given to the intended payee by or on behalf of the drawer. What shall amount to the present appropriation which constitutes an equitable assignment is a question of intention, to be gathered from all the language, construed in the light of the surrounding circumstances.” In the light of the principles announced in these authorities can we gather from the letter of March 19, 1915, an intention on the part of the defendant [487] Moumal to assign the rentals to he collected from his tenants, and to surrender at that time dominion over the fund arising from such collection? It is true that there was a debt owing from Moumal to Parkhurst. It is also true that Moumal recognizes a moral obligation to apply his rentals on the payment of this debt. He testified, “the money belonged to Mr. Parkhurst, it didn’t belong to me,” “I considered the money belonged to the building, and the building belonged to Mr. Parkhurst.” On the other hand, the letter was not given to Mr. Parkhurst or his attorney. It was handed to Wakefield, Fries & Company several days after Mr. Parkhurst’s attorney had asked for an adjustment of the matter. In its form the letter is a mere mandate or instruction to Mr. Moumal’s agent, directing the latter to dispose of Moumal’s funds in a particular way. Such a direction may ordinarily be modified or revoked. It is true that plaintiff was collecting rentals for the defendant Parkhurst, but Mr. Moumal testifies he selected plaintiff to act in the premises for other reasons ; he had known the plaintiff firm for fifteen years; being about to leave for Alaska and being unable to give personal attention to the matter, he selected plaintiff to perform the service specified in his letter of March 19, 1915. Mr. Moumal further testifies clearly and emphatically that at the time when the letter of March 19th was given to plaintiff, Mr. Guild, secretary of plaintiff, expressly stated that the letter could be recalled and the authority revoked at any time. Mr. Guild does not deny this testimony. Moumal’s testimony that the fund belonged to Parkhurst proves that at the time of the trial he recognized the injustice done Parkhurst by the diversion of the fund to other purposes; this testimony cannot in [488] fuse into Ms letter of March 19, 1915, a vitality wMch it does not possess. The intention which is material in the construction of this instrument is the intention at the time when it was given. The burden devolved upon the defendant Parldiurst to prove that the fund in question had been assigned to him, and that Moumal had parted with control over it. We think that the lower court did not err in its conclusion that the defendant Parkhurst failed to sustain this burden. The decree is affirmed. Affirmed. Mr. Chief Justice McBride, Mr. Justice Bean and Mb. Justice Harris concur.