National Market Co. v. Maryland Casualty Co.

Parker, J.

(dissenting)—I adhere to the views expressed in our former decision. I think the negotiable instruments law has no controlling force as between the contractor issuing these checks and the laborers, the payees thereof; nor as between the contractor and appellant, to whom the laborers transferred the checks. Nor do I think the answer to the question of the as*382signment of any funds supposed to be on deposit in the bank against wbicb the checks were drawn is of any consequence here. To my mind the problem simply reduces itself to this: What are the rights of the laborers as against the casualty company, the surety upon the bond, and does appellant stand in the shoes of the laborers? That the laborers, even after receiving their checks* retained all their rights as against the surety, of course, is plain, because the checks, until they should be actually paid by the bank, would not pay the laborers ’ claims. I think it follows that, when the laborers transferred their checks to appellant, it then stood in the shoes of the laborers as to all their rights against the contractor and the surety.

I do not think the suggestion that the contractor or casualty company might be called upon to pay the laborers’ claims twice adds any weight to the argument advanced in the majority opinion, for both the contractor and his surety would have available to them all the defenses that the contractor would be entitled to make as against any other assignable, nonnegotiable chose in action. If the contractor had stopped payment upon the checks at the bank and thereafter paid the laborers without notice of the laborers having transferred their checks—which I am convinced was an equitable assignment of the debts which the checks evidenced — of course, both the contractor and the casualty company would be relieved from further obligations to pay the laborers’ claims. Again, let us be reminded that it is not a question of appellant seeking recovery upon these checks as negotiable instruments.

Since writing our former decision there has come to my notice the decision of the supreme court of California in the case of Goldman v. Murray, 164 Cal. 419, 129 Pac. 462, wherein there was involved promissory notes, negotiable in form, given by a corporation in *383payment of its debt dne tbe payee therein named, but which notes were void as negotiable instruments because of want of authority of the corporation to issue them. The notes being assigned by the payee to the plaintiff by indorsement and delivery only, he was awarded recovery upon the theory that he thereby became the assignee of the debt for which the notes were attempted to be executed. In so holding, it was said:

“The intent of the parties—of Bowen on the one hand to assign and of the plaintiff, on the other to accept the assignment of the corporation indebtedness— thus clearly evidenced by the transaction between them, is not affected by the fortuitous circumstance that the notes themselves were invalid as corporation obligations. They still had validity, not as negotiable instruments, but as evidencing the contract between Bowen and the plaintiff, and this contract amounted to a valid equitable assignment.”

Had there been some security to which the creditor to whom the notes were issued had the right to look for the payment of the debt owing him by the corporation, manifestly it would have inured to the benefit of the plaintiff as assignee of the debt.

For these reasons I dissent.

Fullerton and Mount, JJ., concur with Parker, J.