Barth v. Iroquois Furnace Co.

Mr. Presiding Justice Gary delivebed the opinion of the Coubt. The plaintiff here was plaintiff below, and filed a declaration as follows: John Barth, plaintiff, by leave of court first had therefor, comes now and amends his declaration herein so as to read as follows: “ John Barth, assignee of the Wilkin Manufacturing Company, insolvent, complains of the Iroquois Furnace Company, the defendant, summoned, etc., of a plea of trespass on the case on promises: “For that whereas, on the 19th day of August, 1891, the said Wilkin Manufacturing Company became financially embarrassed and indebted to a large number of persons, and was insolvent; that on, to wit, said 19th day of August, 1891, a law was in force in said State of Wisconsin, under and by virtue of which a debtor being unable to pay his or its indebtedness, and being desirous of providing for the payment thereof by voluntary assignment of all its property and effects for the benefit of his or its creditors, might assign all of his or its property, effects, or choses in action to such person as he or it might select by deed of assignment for the benefit of his or its creditors, and that the said law of the said State of Wisconsin further provided that the legal title to the property and choses in action of the assignor should pass to the assignee mentioned in such deed of assignment upon the execution and delivery thereof; and the plaintiff avers that on, to wit, said 19th day of August, 1891, the said Wilkin Manufacturing Company in pursuance of the said law of the State of Wisconsin, executed and delivered to the plaintiff its deed of voluntary assignment of all its property, effects and choses in action for the benefit of its creditors, and that thereby and under the said law of Wisconsin the legal title to the property and choses in action of the said assignor vested in the plaintiff, and that he, as such assignee, was by the law of said State of Wisconsin authorized to sue in his own name to recover any indebtedness due to said Wilkin Manufacturing Company; and plaintiff avers that at the time of said assignment the said defendant was indebted to the said Wilkin Manufacturing Company in the sum of $15,000 for goods, ware and merchandise before that time sold and delivered by the said Wilkin Manufacturing Company to the said defendant; by means whereof and by virtue of such assignment, the defendant became liable to pay to the plaintiff the said sum of money so due, and being so liable the defendant promised the plaintiff to pay him the said sum on request. For that whereas, the defendant on, to wit, the said 4th day of May, 1892, was indebted to the plaintiff in the sum of $15,000, for goods, chattels and effects before that time sold and delivered by the plaintiff to the defendant at its request; and in a like sum for goods, chattels and effects before that time bargained and sold by the plaintiff to the defendant at its request; and in a like sum for work and service before that time done and bestowed, and material for the same work furnished by the plaintiff for the defendant at its request; and in a like sum for money before that time loaned by plaintiff to the defendant at its request; and in a like sum for money before that time paid and expended by the plaintiff for the use of the defendant at its request; and in a like sum for money before that time received by the defendant for the plaintiff; and in a like sum for interest on divers sums of money before that time forborne by the plaintiff to the defendant, at its request for divers spaces of time before then elapsed; and in a like sum for money found to be due from the defendant to the plaintiff on an account then and there stated between them; and being so indebted the defendant then and there in consideration thereof promised the plaintiff to pay it on request the several sums of money so due it as aforesaid. Yet the defendant, though requested, has not paid the said sums of money above mentioned, nor any or either of them, or any part thereof to the plaintiff, but refused so to do; to the damage of the plaintiff of $15,000; and therefore he brings suit,” etc. The defendant demurred to each count, and final judgment was entered in its favor. The common count was good, and therefore the demurrer to it should have been overruled. The use of the neuter pronoun “ it ” was objectionable—if at all—only on special demurrer. But what the parties are really at odds about is whether an assignee of an insolvent debtor under the laws of Wisconsin can sue here in his own name upon an indebtedness to the insolvent. He can not. The lex fori governs. Bouvier’s Law Dict., Lex Fori; Chumasero v. Gilbert, 24 Ill. 293. The law of Wisconsin, as well as the assignment by the insolvent, is inoperative in this State to confer a right of action upon the assignee of a non-assignable at law chose in action. But as to any dealings between the assignee and the defendant, or as to the vesting of the property in tangible things—goods and chattels, lands and tenements—the assignment by the insolvent may be effectual to give the plaintiff a standing in our courts, notwithstanding the laws of Wisconsin as to assignments by insolvents are opposed to the policy of this State (Townsend v. Cox, 151 Ill. 62), unless the rights of creditors of the insolvent conflict with the claims of the assignee. The assignment is not void, but voidable at the instance of a creditor. The judgment is reversed and the cause remanded.