Porte v. Chicago & Northwestern Railway Co.

SiebecKER, J. The defendant asserts that the trial court erred in holding that plaintiff was employed by defendant in October, 1912, and that he commenced work for defendant under this employment on October 24, 1912. The record clearly sustains the trial court on this point. The record shows that on October 14, 1912, the plaintiff applied to the defendant for employment as brakeman at Green Bay, Wisconsin. This was an entirely different position from the one he held as switchman in Chicago. The transactions between the plaintiff and defendant on the subject show that both parties considered and treated it as a new contract of employment. From this it necessarily follows that plaintiff’s employment as switchman in Chicago was terminated. Plaintiff’s assignment of his earnings for future services is a valid assignment only of the earnings which became due under the employment existing at the time of the assignment. Wages to be earned under an employment not in existence are not assignable. The law recognizes'no assignment of future earnings unless such earnings are based on an existing contract of employment. This doctrine is based on considera--tions of a policy that such assignments tend to subject wage earners to harsh and unreasonable conditions of servitude which operate against the general welfare. In their legal aspect such assignments are considered to deal with a mere possibility not coupled with an interest. Lehigh Valley R. Co. v. Woodring, 116 Pa. St. 513, 9 Atl. 58; Mallin v. Wenham, 209 Ill. 252, 70 N. E. 564; Stromberg, Allen & Co. v. Hill, 170 Ill. App. 323; Blakeslee v. Make-Man T. Co. 175 Ill. App. 515; Herbert v. Bronson, 125 Mass. 474; Mulhall v. Quinn, 1 Gray (67 Mass.) 105; Eagan v. Luby, 133 Mass. 543; 4 Cyc. 18, “Assignments — Future earnings.” We consider that the assignment in question was absolutely void as to the earnings of plaintiff here in question under the common law and that the power of attorney attached to the instrument of assignment is likewise void. An additional con [450] sideration in plaintiff’s favor arises under tbe Wisconsin statute, which inhibits the assignment of any wages for more than sixty days and of all exempt wages unless the assignor’s wife joins in the contract of assignment as prescribed by sec. 2313a, Stats. 1915. The statute is a clear declaration of the state policy on this subject and under it no assignment of exempt salary or wages “shall be valid for any purpose” unless in writing and signed by the wife. In the light of this state of the case the assignee of the plaintiff under the assignment in question acquired no interest or right to the wages plaintiff earned under the October, 1912, contract with defendant. It is contended that since the Illinois court adjudged that the assignment is a valid transfer of the earnings here in dispute and awarded recovery thereof by the assignment against the defendant, which judgment the defendant paid, the plaintiff is estopped in law to recover these earnings. The record does not show that the Illinois court was informed by the defendant in that action that the earnings in question were due for services rendered under an employment which was not in existence when the assignment was executed. If this fact had been brought to the Illinois court’s attention the court undoubtedly would have dismissed the complaint because the adjudications of the Illinois courts declare that in law such an assignment of future earnings is void. See Stromberg and Blakeslee cases, supra. It also appears that plaintiff was not served with process nor was he a party to the action in Illinois, and he was not requested by defendant to defend in the Illinois action. Under these facts and circumstances it devolved on defendant to interpose all defenses to the assignment, including the defense arising out of the Wisconsin.statute, which plaintiff’s attorney had brought to the attention of defendant’s attorneys before judgment was rendered in the Illinois court. Pierce v. C. & N. W. R. Co. [451] 36 Wis. 283; Frels v. Little Black F. M. Ins. Co. 120 Wis. 590, 98 N. W. 522. The Illinois judgment, under the facts above indicated, does not bind plaintiff under the rule that it shall be given such faith and credit in Wisconsin as it received in the state where rendered. D’Arcy v. Ketchum, 11 How. (52 U. S.) 165; Pennoyer v. Neff, 95 U. S. 714; Hamilton v. Rogers, 67 Mich. 135, 138, 34 N. W. 278; Pickett v. Ferguson, 45 Ark. 177. Plaintiff had informed defendant that his earnings were exempt and that the assignment was invalid under the Wisconsin statutes. He had the legal right to resist the enforcement of any alleged Illinois contract in Wisconsin if it contravened the public policy of the state of Wisconsin. Fox v. Postal Tel.-Cable Co. 138 Wis. 648, 120 N. W. 399. The plaintiff clearly called defendant’s attention to the fact that he would insist on this right when the settlement was proposed, hence defendant was not misled by plaintiff, which caused it to waive any rights in the Illinois litigation. There is no reversible error in the record. By the Oourt. — The judgment appealed from is affirmed.