Joint Pole Assn. v. Steele

PRESTON, J.

On March 9, 1927, both respondent Acme Gravel Company and appellant J. A. Steele were creditors of defendant Harry B. Williams, the former in the sum of $1572.60, the latter in the sum of about $2,500. Apparently Williams was a contractor engaged in laying cement sidewalks, to whom respondent had furnished materials for that purpose and expected to supply further materials thereafter. . On March 7, 1927, Williams had entered into a contract in writing with the plaintiff, Joint Pole Association, to repair holes in cement sidewalks and to receive therefor the agreed price of “twenty cents (.20) per surface foot”. On said March 9th respondent Gravel Company took an assignment of said contract from said Williams which recited a consideration of $1572.60 and provided that “all monies due or to become due” under the contract were assigned to it.

[235]

Formal notice of this assignment was given to plaintiff Pole Association on September 8, 1927. Appellant Steele, however, had, on May 24, 1927, reduced his claim to judgment and on June 24, 1927, the sheriff of the city and county of San Francisco levied an execution by way of garnishment upon plaintiff Pole Association seeking possession of all sums due Williams under the terms of said contract above referred to. With both parties to this appeal claiming the fund, plaintiff interpleaded them and asked the court and was allowed by it to pay the sum due to Williams, to wit: $1,010.88, into court. Williams was also made a defendant. He disclaimed any interest in the fund, however, and cast his lot with respondent in the controversy.

Issues were made up between respondent and appellant Steel as rival claimants. The case was tried by the court without a jury. Findings were made and judgment followed, decreeing the whole of said sum to respondent Gravel Company. From said judgment, this appeal followed.

Appellant claims that there was fraud between respondent Gravel Company and said Williams. The court found contrary to this contention and we see no reason to disturb its finding in this respect. Apparently, as above noted, Williams was in the business of contracting for the construction of cement sidewalks and respondent was furnishing him with materials to carry on his business and for the purpose of securing payment of sums due for materials already advanced and for further materials to be advanced thereafter, it took the assignment in question. Even though it is conceded by all parties that Williams then and at all times herein involved was insolvent, we cannot see that this fact is of controlling importance. Appellant took no steps to bring Williams before the bankruptcy court. No fault can be found with respondent’s effort to secure itself both for past debts due it and for its future advances.