Lawson v. Lyon , 136 Ga. 214 ( 1911 )

Holden, J.

(After stating the foregoing facts.) Counsel for the plaintiffs in error in their brief make the following contentions: “The, verdict was proper, and the grant of a new trial error, as a matter of law. The fatal legal defects in plaintiff’s case are: 1. Lawson’s claim was not assignable. 2. The order on the Grand Secretary was not an assignment, legal or equitable. 3. If an equitable assignment, it could not be asserted in a proceeding to which neither the assignee of the other portion of the claim, nor the Brotherhood, was a party; and 4. There was no proof of Lawson’s insolvency.” If Lawson had “suffered the amputation or severance of an entire hand at or above the wrist joint,” the Lodge would have been absolutely liable for the full amount of the certificate, had its provisions been complied with. His “hand was cut off below the knuckle in front of the thumb.” The injuries received by Lawson were not such as to create on the part of the Lodge, under its rules, any absolute liability on its part to pay Lawson anything on account of such injuries. The injuries he received were such as made a claim on account thereof “addressed to the systematic benevolence of the Brotherhood.” This provision of the rules was probably intended to meet instances where injuries were received not exactly coming within the class for which the Lodge made itself absolutely liable, but so nearly so as to cause the Lodge to have a systematic method of considering a claim for such injuries and to pay the injured party therefor in its discretion, though under such provisions the Lodge would have the right to pay the full amount of the certificate to the member holding the same on account of any disability he might suffer. The injury received by Lawson was not exactly, but almost, within the class for which the Lodge made itself absolutely liable to pay. Under the rules of the Grand Lodge, Lawson had the right to present his claim -for such injuries to the “systematic benevolence of the Brotherhood.” The language of the rule hereinbefore referred to shows that not only was it the right of Lawson to present to the Lodge his claim on account of the injuries he received, but that the Lodge had a system for the consideration of such claims^ and had the right to pay the same. Before Lawson, on October 8, 1908, gave to Lyon an order on the secretary and treasurer of the Lodge for $750, to be paid out of his claim, he had presented his claim to the Lodge, and they had had the question of its payment under consideration. The claim of Lawson was approved by the Beneficiary Board before November 12, 1908. On November 25, 1908, after the claim was thus approved, Lawson gave to Lyon another order on the secretary and treasurer of the Lodge for the $750, to be paid out of the claim. This order given by Lawson after the claim was approved was not void under the provisions of the Civil Code (1910), § 4117, that “A bare contingency or possibility can not be the subject of sale, unless there exists a present right in the person selling, to a future benefit.” After the claim was thus approved, it can not be said that it had no potential existence, even if it could be said that prior to its approval it lacked sufficient potentiality to make it assignable. In Dickey v. Waldo, 97 Mich. 255, 261 (56 N. W. 608, 23 L. R. A. 449), it was said: “In the legal sense, things are said to have a potential existence when they are the natural product or expected increase of something already belonging to the vendor.” The last order on the secretary and treasurer of the Grand Lodge given by Lyon to Lawson was enclosed in a letter from that official to Lyon under the date of November 12th, after which date it was presented to Lawson and signed by him. The receipt signed by Lawson and the orders given by him designate the fund out of which the $750 was to be paid. The orders did not merely .direct the secretary and treasurer to pay Lyon a certain amount, but specified the fund on which they were drawn; and certainly, after the approval of the claim, the order then given amounted to an equitable assignment thereof to the extent of $750. Even if the orders given by Lawson did not divest him of the legal title to the fund to the extent of $750, he should not be permitted to claim and collect that to which Lyon had the equitable title by reason of these orders. Lawson could not rightfully and justly claim that to which he had formally passed the equitable title to Lyon, even if he did not part with the legal title thereto. Fidelity & Deposit Co. v. Exchange Bank, 100 Ga. 619, 622-623 (28 S. E. 393). The Grand Lodge is not a party and is not setting up any defense. It appears that the Beneficiary Board has approved the claim, and the Grand Lodge is ready to pay it. The question, therefore, arises between the assignor and the assignee of such approved claim. ■

There was evidence tending to show insolvency on the part of Lawson. Error was assigned on the order overruling a demurrer to the petition; but as no reference to this-assignment was made in the briefs of counsel for the plaintiff in error, it will be considered as abandoned. Whether or not the person to whom it was claimed Lawson had transferred the balance of the claim of $1,350, or the Grand Lodge, either or both, were necessary parties to the injunction proceedings, a verdict in favor of the defendants was not demanded because they were not made parties, it not appearing that the question of nonjoinder of parties was raised in the court below or passed upon before the rendition of the verdict. Hunt v. Doyal, 128 Ga. 416 (57 S. E. 489). The plaintiff testified that he purchased from Lawson his claim to the extent of $750 for 'the sum of $250, and that in pursuance of this contract of purchase he paid Lawson the $250 and took from him the orders. We have treated the case on the theory that the contentions of the plaintiff in these respects were true, as counsel for Lawson in their briefs contend that the latter had no claim which was assignable, and that the orders given by Lawson were not valid either as a legal or as an equitable assignment. The evidence did not demand the verdict, and the first grant of a new trial by the court below will not be disturbed. Judgment affirmed.

All the Justices concur.