Opinion
12-30-1898
HOPPER v. MORGAN et al.
John H. Backes, for complainant. Linton Satterthwaite, for defendant.
Bill by John G. Hopper against William Morgan and others for the issuance of an injunction to prevent the transfer of a debtor's assets during an accounting. Granted.
John H. Backes, for complainant.
Linton Satterthwaite, for defendant.
GREY, V. C. (orally). This bill is filed by a judgment creditor of Alfred Nelson, who is the contractor for the doing of some work at Seaside Park. Under the contract, there is yet coming to him a balance somewhere in the neighborhood of $1,800 to $2,000; and he also has a claim against Seaside Park for extra work, which he asserts is about $3,000 additional. The defendant William Morgan, under an equitable assignment to him, which has been sustained in this court, as presented in a previous case, claims to hold the moneys due under this contract This assignment was given as security, and it appears in this case that Morgan claims to have again assigned these moneys to a creditor of his own, Stokes by name, a defendant in this suit, to secure a loan made by Stokes to Morgan. In the bill a number of equities are set up, based upon the claim that Morgan is a partner of Nelson. I do not think it is necessary, in determining the question as to whether a preliminary injunction should go, to notice these, or pass upon them in any way. They can remain until final hearing. And so with the other equities touched upon or suggested by complainant's counsel as reasons for granting a preliminary injunction. The testimony is not all of it of the most credible character, but the asserting testimony is about as credible as the refuting; but courts are obliged to take what is submitted, and to decide questions as the evidence may appear to be more or less worthy of acceptance. The testimony of Morgan seems tp me to be considerably shaken by the fact that he appears to have made an affidavit that a large amount of money was due on his chattel mortgage, when it presently appears that a less sum was due; and the statements of Nelson seem to be directly contradictory on different occasions. I am satisfied that the equitable assignment of the Seaside Park debt by Nelson to Morgan was for security only, and that there never has been any such account or settlement between Nelson and Morgan as has ascertained, in a manner to be binding on either of them, the amount that was due from Nelson to Morgan. I am not willing to assume that, because the amount due from Nelson to Morgan might have been a greater sum than the amount of the asset which was assigned to Morgan, theretofore the asset was assigned in payment. What equities were outstanding as between these parties have never been settled. It seems perfectly plain from the statement of Morgan himself that this transfer ofthe Seaside Park debt to him, upon his own presentation of the case, was as security, and as security for an unascertained sum. He assigned it to Stokes as security, and as security for a sum which is not stated in the affidavits, nor proved to have been fixed at all. At this time the complainant in this judgment appears, and he is a creditor of Nelson, the original assignor. Nelson, the original assignor, is entitled to an account from Morgan, and to an account from Stokes, to ascertain and fix their interest in the asset assigned as security; and this creditor, who comes along at the tail end, is entitled to stand in Nelson's place, and have that accounting. I am not touching upon the equities asserted in the bill other than the right of the complainant to an accounting. I think it very clear that, accepting the aspect of the case which the defendants themselves present, the complainant has a right to an accounting, and is also entitled to have the status quo maintained until the respective rights of the parties can be ascertained; and so, passing only upon that question, I think he is entitled to an injunction until final hearing.
There has been some intimation given that the Seaside Park, the original debtor of this many times assigned claim, is inclined to be disputatious, and resist the payment of a just sum. I say here and now to counsel—while all of the parties claiming this fund are in court—that, if at any time it becomes apparent that a receiver should be appointed to sue the Seaside Park, it is quite within the power of the court to appoint a receiver in this suit, who might enforce, as against Seaside Park, the rights of all the parties. This course may be necessary in order to save a multiplicity of suits, but is not I think, now necessary. I will hear counsel at any time whether a receiver ought to be appointed to collect this money. In the meanwhile counsel may send me an order simply staying this fund from being paid by the Seaside Park until further order, and staying the transfer or disposition of it by any defendant until final hearing.