
    Common Pleas Court of Montgomery County.
    Dayton Rubber Manufacturing Co. v. Shroyer et al.
    Decided April 30, 1930.
    
      Burkhart, Heald & Pickrel, for Dayton Rubber Mfg. Co.
    
      Irwin C. Delscamp, for Frank P. Shroyer.
    I. L. Holderman, for State Loan & Realty Co.
   Snediker, J.

The plaintiff is a manufacturing company; the defendant, Frank P. Shroyer, was one of its employees- The defendant, the State Loan & Realty Company, is a corporation organized under the laws of Ohio for the pur' pose of making. loans upon chattel property, wages, salaries, etc. The plaintiff is in possession of a fund amounting to $168.69, which represents 50 per cent, of the wages earned by Frank P. Shroyer from September 7, 1929, to January 18, 1930, and upon which the defendant, the State Loan & Realty Company, claims to have a lien by virtue of an assignment executed and delivered to it by Frank P. Shroyer and Effie L. Shroyer, his wife, on December 5, 1922, which assignment is of “50 per cent, of all the sum or sums of money due or that may hereafter become due to me, from whomsoever I may be employed, on account of work, labor or services performed or done or to be performed or done in the future by me, and all my right, title, interest or claim in, to, or upon such wages, salary, or moneys due me in any form whatsoever.” To the fund now in the hands of the Dayton Rubber Manufacturing Company, both Frank P. Shroyer and State Loan & Realty Company make claim. Because thereof, the plaintiff filed a petition in this court, asking that the defendants be required to interplead, that it be allowed to deliver the moneys in the fund to the clerk of this court, that the court determine as between the defendants to whom the fund ought to be paid, and that it be discharged from all liability in relation thereto.

By the answer and cross-petition of the State Loan & Realty Company, and by the reply of Frank P. Shroyer, an issue is made up, to support which an agreed statement of facts has been signed and filed by both defendants. It appears therefrom that on the fifth day of December, 1922, Frank P. Shroyer applied to the State Loan & Realty Company for a loan of $300; that at that time he was a farmer, living on his farm in Miami county, and was solely so engaged; that a note was made by him and his wife in favor of the State Loan & Realty Company which is now in its possession, and that an assignment was executed and delivered by Shroyer and his wife of Shroyer’s wages in the terms which we have already quoted. Shroyer continued to live on his farm and remained otherwise unemployed until January 15, 1925, a period of more than two years after the making of the note and the delivery of the assignment; but in February of 1925 he became an employee of the Dayton Rubber Manufacturing Company, located in this city, which employment continued until March 8, 1930. In September of 1928 a bankruptcy proceeding was started by Shroyer, and in December of that year he was discharged by the federal court. On the 24th day of August, 1929, the State Loan & Realty Company filed with the plaintiff a copy of the assignment which had been executed by Shroyer, and the fund now in plaintiff’s hands represents 50 per cent, of the wages earned by Shroyer after that time.

The only question which we are called upon by counsel to determine in this opinion is whether or not the State Loan & Realty Company is entitled by the filing of its assignment with the Dayton Rubber Manufacturing Company, and by otherwise complying with the law with respect to such assignments, to a lien upon the wages of Shroyer due and owing from the Dayton Rubber Manufacturing Company after it was so filed.

On May 7, 1915, the Legislature of Ohio amended and supplemented the Code provisions: “providing for the regulation and licensing of the loaning of money, without security upon personal property, and of purchasing or making loans upon salaries or wage earnings.” The law then enacted was in force and effect at the time of the execution of Shroyer’s assignment to the' State Loan & Realty Company, and became a part of the assignment. That provision of the act which relates particularly to the definition of such assignments and the procedure necessary to render them valid is found in Section 6346-7, General Code, and reads as follows:

“No assignment of any salary, wages or earnings, or any part thereof given to secure a loan shall be valid tin-less the same shall be in writing, signed in person by the person making the same; and if such person is married and living with husband or wife, signed also by the husband or wife of such person, as the case may be. Nor shall any such assignment be valid unless the same shall be in writing and made to secure a debt contracted simultaneously with the execution of such assignment, with all blank spaces therein filled in with ink or typewriting, together with the date, names of the assignor and assignee, the amount for which such assignment is made, together with the rate of interest charged.”
“The term assignment as used in this section shall include every instrument purporting to transfer an interest in or any authority to collect the wages, salary or earnings of such person. Any assignment of roages, salary or earnings made in accordance with the provisions of this section shall bind the wages, salary or earnings earned or to be earned by the assignor until the loan secured by such assignment and interest thereon is fully paid, but no assignment or conveyance of wages, salary or .earnings to be earned in the future given to secure a loan shall be binding for a sum in excess of fifty per cent, of the amount due or to become due the person making such assignment.”

Particularly we are called upon to interpret the last clause here quoted, the contention of counsel for Shroyer being that such an assignment ought not to apply to other than a present employment, while the State Loan & Realty Company say that it should apply not only to present, but to any future employment.

One of the cardinal rules with respect to interpretation of statutes is that they shall be read in the light of common law and construed with reference thereto. As is stated by Black in his work on Interpretation of Laws, at p. 233:

“No statute enters a field which was before entirely unoccupied. It either affirms, modifies, or repeals some portion of the previously existing law. In order, therefore, to form a correct estimate of its scope and effect, it is necessary to have a thorough understanding of the laws, both common and statutory, which heretofore were applicable to the same subject. Whether the statute affirms the rule of the common law on the same point, or whether it supplements it, supersedes it, or displaces it, the legislative enactment must be construed with reference to the common law; for in this way alone is it possible to reach a just appreciation of its purpose and effect. Again, the common law must be allowed to stand unaltered as far as is consistent with a reasonable interpretation of the new law. ‘The general rule in the exposition of all acts of parliament is this, that in all doubtful matters, and where the expression is in general terms, they are to receive such a construction as may be agreeable to the rules of the common law in cases of that nature; for statutes are not presumed to make any alteration in the common law further or otherwise than the act does expressly declare; and therefore in all general matters the law presumes the act did not intend to make any alteration, for if the parliament had had that design, they would have expressed it in the act.”

In determining what the Legislature meant by the enactment of Section 6346-7, it is therefore our duty to ascertain the state of the common law at the time of such enactment, as well as such statutory provisions as were theretofore made by the Legislature with regard to such loans and liens. The common law as to assignments of this character is as follows:

“A mere possibility or expectancy not coupled with any interest could not at common law be made the subject of a valid assignment or transfer. Under the rule that a mere expectancy or possibility is not assignable at law, an assignment of future wages is ‘invalid where there is no contract of employment in existence at the time, and the wages.are those to be earned under engagements which are to be entered into subsequently. Such a transfer is an attempt to assign that which has no existence either actually or potentially, there being no foundation or contract on which an indebtedness may arise.” 2 Ruling Case Law, p. 603.

It was in pursuance of this rule of common law that the Supreme Court of Ohio, in deciding the case of Rodijkeit V. Andrews, 74 O. S., pp. 104-116, said:

“It is well settled that a mere expectancy or possibility is not assignable at law, consequently wages to be earned in the future, not under an existing engagement but under engagements subsequently to be made, are not assignable. If there is an existing employment, under which it may reasonably be expected that the wages assigned will be earned then the possibility is coupled with an interest and the wages may be assigned.”

The common law as so stated is used in 1 Gray, 105; 79 Minn., 383; 95 Minn., 35.

In the absence of any previous statutory provision similar to or the same as the second clause of Section 6346-7 found in the Act of May 7, 1915, we are, therefore, relegated to an interpretation of that clause by an application of the common law to its terms, and particularly to that part thereof which reads: “shall bind the wages, salary or earnings earned or to be earned by the assignor until the loan secured by such assignment and interest thereon is fully paid,” and say that the Legislature ought to be understood to have intended that such wages, salary or earnings earned or to be earned, refers to present and not future employment. The original act, found in 102 O. L., p. 469, and. of which the act of May 17, 1915, is an amendment and supplement, does not contain any language contradictory of this view. Under the code provisions found in 105 O. L., with this assignment indefinite and unlimited as to time before us, the right of the State Loan & Realty Company ought not to be extended further than present employment. To say that it was within the contemplation of the parties that an employment not then conceived of, so different in its nature from that in which the assignor was engaged, was within the scope of the terms of the assignment, would require an interpretation of this section which is not only an unlicensed extension of its language, but is in conflict with the common law, to which we are required to resort for an ascertainment of its meaning.

Our opinion, therefore, is that the fund now in the hands of the Dayton Rubber Manufacturing Company ought to be paid to Shroyer, and not to the defendant, the State Loan & Realty Company,  