Ponton v. . Griffin, Bro. Co. . , 72 N.C. 362 ( 1875 )

It is to be regretted that counsel who represent appellants do not in all cases strictly pursue the provisions of the Code for settling cases on appeal. It will probably be found necessary to dismiss, on motion of the appellee, every appeal where the case is not settled as prescribed, or agreed on by the parties.

The result of a neglect of the prescribed forms of proceeding in the present case, is that the Judge was called on to settle the case so long after the trial, that as he says the incidents of it had faded from his recollection, and counsel on the different sides are unable to agree as to what occurred.

The case to which the Judge gives a qualified and reluctant approval, although quite long yet almost evidently fails to state with fullness and precision the instructions of the Judge to the jury on what seems to be the only contested question in the action.

It seems to be admitted that the attachment of Pender created a lien on the debt from Eppes to Griffin, Brothers Co.: Provided, That debt had not been previously assigned in some valid way to Bayne Co., and to Kirkland, Chase Co.

The only evidence as to such assignment was that given by one Chapman who said that in 1868, 1869 or 1870, he was a member of the firm of Kirkland, Chase Co., in Baltimore, and that Griffin, Brothers Co., being indebted to them in 1869, verbally agreed to assign to them the Eppes debt in part payment. He does not say that any assignment was actually made either verbally or otherwise, but merely that Griffin offered to assign, and that his offer was accepted. It is consistent with his evidence that there was merely an executory agreement to assign. Chapman does not state whether the note of Eppes was delivered to him, or whether Griffin was credited with its value as a payment on his debt, or explain why it was that an assignment of this debt as a collateral security was afterwards made and accepted.

The Judge instructed the jury that "if W. H. Griffin turned oververbally to the plaintiffs," (meaning thereby as we suppose Kirkland, Chase Co., and Bayne Co.,) the interest of Griffin, Brothers Co., in the Eppes debt, c., it was a good assignment, and it done prior to the attachment of Pender valid against him; that it was not necessary that the transfer should have been in writing; and that though Mr. Bayne of W. Bayne Co., did tell the witness Pender that the interest or debt assigned to them was transferred as a collateral security for their claim against Griffin, Brothers Co., that did not make it so, that Mr. Bayne might have thought that it had been transferred as a collateral, when in fact it was transferred as an absolute payment and discharge of their claim against Griffin, Brothers Co. That they must consider the whole evidence and find as a fact whether it was received as a collateral or as a payment. His Honor then explained to the jury the difference between a collateral and a payment, to which no exception was taken."

The jury found that there was a verbal assignment of the Eppes debt to Bayne Co., and to Kirkland, Chase Co., for a valuable consideration, before the attachment of Pender.

On this verdict the Judge directed payment of the fund to Bayne Co., and to Kirkland, Chase Co., and Pender appealed.

The brief filed by the counsel for Pender, seems manifestly to have been drawn in reference to a different state of facts, and to different questions, from those which we have before us.

We perceive no positive error in the instructions of the Judge. A debt may be verbally assigned. We know that it is done daily. The evidence that the debt was here in fact assigned seems weak, but it cannot be said that there was no evidence of an executed assignment for value.

There is no error in the judgment below which is accordingly affirmed.

PER CURIAM. Judgment accordingly.