Perry v. Parrott

HENSHAW, J.

This appeal is from the judgment, the contention of appellants being that, upon the findings, they were entitled to the relief which they asked.

The evidence not being before us, the history of the transactions between these parties is to be derived from the admissions of the pleadings and the findings of the court. In chronological order, they are as follows: The San Francisco Furniture Manufacturing Company, a corporation, was under contracts with defendant, Mrs. Abby M. Parrott, to do certain work upon her building in San Francisco, known as the Parrott Building, and none of the contracts was recorded. The work done under the contracts amounted to $2,223.63, and the work was completed at a time about the middle of September, 1896. In the performance of its contracts the San Francisco Furniture Manufacturing Company purchased material and became indebted to certain other persons and firms, some of whom have become interveners and claimants in this action. About the 26th of August, 1896, and during the progress of the work upon these contracts, the furniture company needing money, borrowed from John C. Hughes, one of its directors, the sum of $1,400. The debt was evidenced by the note of the corporation for $1,400. To secure the payment of the note, the corporation, at the same time and as part of the transaction, executed and delivered to Hughes an assignment of the moneys due, or to fall due, to it from Mrs. Parrott upon account of the contracts. In September, 1896, Hughes served due notice of the assignment upon Mrs. Parrott. Upon the 9th of October, 1896, the San Francisco Furniture Manufacturing Company was adjudged an insolvent debtor, and on the 23d of October, 1896, John C. Hughes, above mentioned, was elected assignee in insolvency. On the 14th of December, 1896, Hughes transferred to George O. Perry, plaintiff herein, the claim of the San Francisco Furniture Manufacturing Company against Mrs. Parrott, which had been assigned to him by the corporation, as collateral security for the $1,400 promissory note. At all times Hughes and Perry had knowledge of the sums due and unpaid from the manufacturing company to the material-men.

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On or before January 29, 1897, Hughes, for value, sold and delivered the $1,400 promissory note of the San Francisco Furniture Manufacturing Company to F. H. Pitman, intervener and appellant herein. On the 29th of January, Pitman executed and presented to Hughes, then assignee in insolvency,, a formal claim of debt without security, in which was set forth that the said Pitman “has not, nor has any person by his order,, or to his knowledge or belief, for his use, had or received any manner of satisfaction of security whatsoever. ’ ’ Hughes rejected this claim, and filed it in his schedule of claims presented, with the statement as follows: “This claim is for gold coin loaned by John C. Hughes to said insolvent, for the purpose of paying laborers’ wages, on or about the fourteenth day of August, 1896; to secure this claim an agreement was-made by said insolvent with said Hughes. . -. . Said claim was further secured by an assignment to said Hughes of all moneys owing said insolvent by Mrs. A. M. Parrott. Subsequent to the loan of said money, said Hughes, for full value-paid him by said Wilson and Gaskill, made an assignment of said indebtedness for $1,400, together with all security which he held therefor, to one-, who, as said Hughes is informed,. holds said mortgage in trust for said W. I. Wilson and H. D. Gaskill. Said assignee knows no reason why said claim is not-a just claim, but states that he has been requested by the president of said insolvent corporation, also, not to approve said claim by certain of the creditors, and on that ground only said' assignee does not approve the same. ’ ’ In April, 1897, Hughes; resigned as assignee, and George T. Gaden was appointed in his place. On the 7th of July, 1897, plaintiff, Perry, commenced this action against the defendant, Mrs. Parrott, to recover the amount due from her for the work done by the-furniture company, basing his right of action upon the assignment by the company to Hughes and the assignment from Hughes to him, and alleging that he was the owner and holder of the demand. The defendant Mrs. Parrott’s attitude in the litigation, may be at once stated and disposed of. The amount of money due from her is not in dispute. She seeks merely the guidance of the court to aid her in paying it to the parties, to whom it is justly due, and is, so far as these controversies are concerned, under the stipulation of the parties, a mere stakeholder of the funds. Twenty days after Perry com