Abbott v. Davidson , 18 R.I. 91 ( 1892 )

We find no error in the refusal of the court below to charge the garnishees.

First. The defendant contends that the permission by Hubbard as assignee of the contract to the defendant to receive the moneys which had become due under it prior to the attachment was fraudulent as against the plaintiff, an attaching creditor, and, therefore, that Hubbard is estopped from claiming the fund as against the plaintiff. We do not think that the fact that Hubbard permitted the defendant to receive the moneys was conclusively fraudulent in law. It was, at most, a fact from which, if nothing else appeared to rebut it, an inference of fraud might have been drawn. Mead v. Gardiner, 13 R.I. 257, 259. The court below must have found as a fact that such permission to receive and receipt for the moneys was not fraudulent. We do not, on a bill of exceptions, revise the findings of fact of the court below. Providence County SavingsBank v. Phalen, 12 R.I. 495, 496; Rexroth v. Coon,15 R.I. 35, 39.

Second. The plaintiff contends that the assignment of the contract to Hubbard, having been made as collateral security for certain debts, the fund cannot be held because the assignee's own testimony shows, it is alleged, that the debts have been paid. We do not so understand the testimony. On the contrary, it appears thereby that the defendant is still indebted to the assignee in the sum of $2,286.86.

Third. The defendant contends that the assignment was void because not recorded as provided by Pub. Laws R.I. cap. 458 of May 29, 1884. That statute, however, relates only to assignments of future earnings. The assignment in the present instance was of a building contract. We do not see that the fact that the contractor himself did work in the fulfillment of the contract is sufficient to authorize us to treat the profit, if any, which might accrue to him from the performance of the contract, as earnings within the meaning of the statute. The statute provides for the recording of the assignment in the office of the town clerk, or of the recorder of deeds, as the case may be, of the town where the assignor resides, or if the assignor is not a resident of the State, in the office of the town clerk, or of the recorder of deeds, in the town where he is employed. The word "employed" indicates that the assignments contemplated by the statute were assignments of wages earned under a contract of hiring by one employed; and not assignments of contracts like the present.

Fourth. We see no ground for holding, as the defendant contends, that the assignee is estopped from claiming the fund because he had previously filed in the name of the defendant a petition for a mechanic's lien, which is still pending, on the land of the garnishees on which the house was built. Nor do we see any inconsistency in the assignee's appearing as a claimant of the fund; if he had not appeared and the garnishees had, in consequence, been charged, they might safely have paid over to the plaintiff the sum for which they have been so charged and such payment would have been a complete protection to them protanto, against the claim of the assignee either in the lien or any other suit which might be instituted. Alves v. Barber,17 R.I. 712; Providence Institution for Savings v. Barr,17 R.I. 131. Fifth. The defendant contends that the attachment is superior to the assignment because notice of the assignment was not given to the debtor within a reasonable time, nor until after the attachment had been made. It has, however, repeatedly been held in this State that notice of the assignment to the garnishee in season to enable him to disclose it in his answer, and thereby avoid being charged, is all that is necessary to uphold the assignment against the garnishment; notice to the debtor being required only for his protection. Northam v. Cartright Co,10 R.I. 19, 21; Tracey v. McCarty, 12 R.I. 168, 169;Tiernay v. McGarity, 14 R.I. 231, 232; Lee v. Robinson,15 R.I. 369, 371.

Exceptions overruled and judgment of the Court of Common Pleas against the defendant and also discharging the garnishees affirmed, with additional costs of this court.