Roberts v. First National Bank

TTbneb, J., delivered the opinion of the Court. The First National Bank of Southern Maryland obtained a judgment by confession for $420.60 against Richard B. B. Chew, who thereafter, in a contested suit, secured a judgment on verdict against Wilbur F. Nash for $1,400. The latter judgment was assigned by the plaintiff to his attorney, Clarence M. Roberts, by whom the suit had been conducted. While the assignment was absolute in form, its purpose was to afford security to Mr. Roberts for his fee and for money advanced, aggregating $467, and he was to be accountable to the assignor for his collections on the judgment in excess of that sum.

An attachment was issued on the judgment of the First National Bank against Mr. Chew, and was laid in the hands of Mr. Roberts as garnishee. Subsequently the judgment which he held as assignee was paid with his consent directly to his assignor, who then made settlement with him for the amount of his fee and advancements. At the trial of the attachment case, the defense of the garnishee was that he had never received any of the fund sought to be attached, and he asked for a directed verdict in his favor upon that theory. The request was refused, and at the plaintiff’s instance the court below instructed the jury, in effect, that if the garnishee, while the attachment was in force, permitted his assignor to receive the money due on the assigned judgment, and the sum as to which the garnishee thus waived his right of collection was sufficient to pay the attachment claim, a verdict should be rendered against him for its amount.

Those rulings are the subject of the only exceptions in the record on this appeal from a judgment for the plaintiff. ³⁸ The payment of the assigned judgment was made in the office of Charles T. Clayton, the debtor’s attorney. He had notified Mr. Roberts of his readiness to pay the judgment with a check which his client had sent him for that purpose. When Mr. Roberts, accompanied by Mr. Chew, called at Mr. Clayton’s office, the check of the judgment debtor, drawn to the order of his attorney, was produced, and after endorsing it in blank, Mr. Clayton, according to his testimony, tendered it to Mr. Roberts, who said, “Give it to Mr. Chew.” The check was then laid on the desk by Mr. Clayton and was taken by Mr. Chew, who then signed a release of the judgment. At that time Mr. Clayton was not aware that Mr. Roberts held the judgment by assignment.

It was testified by Mr. Roberts that, after endorsing the check, Mr. Clayton inquired, “Who gets the check?” and Mr. Chew said, “I will take it,” and it was then handed by Mr. Clayton to Mr. Chew. The latter account of