A-93682, APRIL 4, 1938, 17 COMP. GEN. 812

A-93682: Apr 4, 1938

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CLAIMS - VOID ASSIGNMENTS - COLLECTION OF PROCEEDS OF CHECK WHERE ASSIGNEE UNABLE TO LOCATE PAYEE AN ASSIGNMENT OF A CLAIM AGAINST THE UNITED STATES EXECUTED BEFORE THE CHECK IN PAYMENT THEREOF WAS ISSUED. IS NULL AND VOID. 1938: THERE WAS RECEIVED YOUR REQUEST OF FEBRUARY 16. BECAUSE THE ASSIGNMENT WAS IN CONTRAVENTION OF SECTION 3477 OF THE REVISED STATUTES. IT IS STATED: IN SUPPORT OF OUR CLAIM WE ENCLOSE AFFIDAVIT OF C. THIS IS IN ADDITION TO THE WITNESS ALREADY MAILED IN WITH THE ORIGINAL CLAIM. IN THE BELIEF THAT IT WOULD BE OF SOME HELP TO YOU WE HAVE SECURED A COPY OF LETTER WRITTEN BY G. WHICH IS ENCLOSED. IT WILL BE NOTED BY REFERENCE TO THE STATUTE. THAT THE ASSIGNMENT IS ABSOLUTELY NULL AND VOID BECAUSE IT WAS MADE BEFORE THE CHECK WAS ISSUED AND WAS NOT PROPERLY DRAWN OR PROPERLY WITNESSED.

A-93682, APRIL 4, 1938, 17 COMP. GEN. 812

CLAIMS - VOID ASSIGNMENTS - COLLECTION OF PROCEEDS OF CHECK WHERE ASSIGNEE UNABLE TO LOCATE PAYEE AN ASSIGNMENT OF A CLAIM AGAINST THE UNITED STATES EXECUTED BEFORE THE CHECK IN PAYMENT THEREOF WAS ISSUED, AND OTHERWISE NOT IN ACCORDANCE WITH THE PROVISIONS OF SECTION 3477 OF THE REVISED STATUTES, IS NULL AND VOID, AND IMPOSES NO DUTY ON THE UNITED STATES TO ASSIST IN COLLECTION ON THE CHECK ISSUED IN FAVOR OF THE GOVERNMENT CREDITOR BUT MAILED TO THE PURPORTED ASSIGNEE AS REQUESTED BY THE PAYEE, APPROPRIATE COURT PROCEEDINGS BEING AVAILABLE TO EFFECT COLLECTION IF THE PAYEE CANNOT BE LOCATED FOR THE PURPOSE OF SECURING HIS ENDORSEMENT ON THE CHECK.

ACTING COMPTROLLER GENERAL ELLIOTT TO BABBITT BROTHERS TRADING CO., APRIL 4, 1938:

THERE WAS RECEIVED YOUR REQUEST OF FEBRUARY 16, 1938, FOR REVIEW OF SETTLEMENT OF FEBRUARY 4, 1938, WHICH DISALLOWED YOUR CLAIM FOR $212.88 UNDER AN ASSIGNMENT BY E. B. UNDERWOOD OF THE AMOUNT DUE HIM UNDER CONTRACT NO. PB-DE-8, MAY 17, 1937, FOR COVERING STEAM PIPES IN THE BASEMENT OF THE WINSLOW, ARIZ., POST OFFICE, BECAUSE THE ASSIGNMENT WAS IN CONTRAVENTION OF SECTION 3477 OF THE REVISED STATUTES.

IN THE LETTER OF FEBRUARY 16, 1938, IT IS STATED:

IN SUPPORT OF OUR CLAIM WE ENCLOSE AFFIDAVIT OF C. V. RHOTON AND W. L. LINDBLOM WHO WITNESSED THE ASSIGNMENT OF THIS CLAIM TO US BY E. B. UNDERWOOD. THIS IS IN ADDITION TO THE WITNESS ALREADY MAILED IN WITH THE ORIGINAL CLAIM.

IN THE BELIEF THAT IT WOULD BE OF SOME HELP TO YOU WE HAVE SECURED A COPY OF LETTER WRITTEN BY G. T. STEVENS, POST MASTER, AT WINSLOW, DATED JUNE 16TH, 1937, SHOWING THAT THE WORK HAD BEEN ACCEPTED, AND ALSO IN WHICH HE MENTIONED THE ASSIGNMENT MADE US BY E. B. UNDERWOOD, WHICH IS ENCLOSED.

IT WILL BE NOTED BY REFERENCE TO THE STATUTE, AS QUOTED IN THE SETTLEMENT CERTIFICATE, THAT THE ASSIGNMENT IS ABSOLUTELY NULL AND VOID BECAUSE IT WAS MADE BEFORE THE CHECK WAS ISSUED AND WAS NOT PROPERLY DRAWN OR PROPERLY WITNESSED. EITHER OF THESE THREE DEFECTS IS SUFFICIENT TO RENDER THE ASSIGNMENT NULL AND VOID. THE ASSIGNMENT WAS MADE ON OR BEFORE JUNE 9, 1937, WHEREAS THE CHECK WAS ISSUED IN FAVOR OF THE ASSIGNOR AUGUST 5, 1937, AND SENT TO HIM IN YOUR CARE. THE STATUTE SPECIFICALLY PROVIDES THAT ASSIGNMENTS OF A CLAIM AGAINST THE UNITED STATES, IN ORDER TO BE LID,"MUST RECITE THE WARRANT (CHECK) FOR PAYMENT, AND MUST BE ACKNOWLEDGED BY THE PERSON MAKING THEM, BEFORE AN OFFICER HAVING AUTHORITY TO TAKE ACKNOWLEDGEMENTS OF DEEDS, AND SHALL BE CERTIFIED BY THE OFFICER.' SEE IN THIS CONNECTION NATIONAL BANK OF COMMERCE V. DOWNIE, TRUSTEE, 218 U.S. 345. SEE ALSO 25 COMP. DEC. 701.

IN THE PRESENT CASE THE VOUCHER ON WHICH THE CHECK WAS ISSUED BY THE DISBURSING OFFICER WAS CERTIFIED BY E. B. UNDERWOOD, THE CONTRACTOR, WHO RENDERED AND PERFORMED THE WORK FOR WHICH THE CHECK WAS IN PAYMENT, AND AT HIS REQUEST THE CHECK WAS SENT TO HIM IN YOUR CARE. THAT WAS IN ACCORDANCE WITH THE ESTABLISHED PRACTICE IN SUCH CASES. THAT YOU UNDERSTOOD, AT TIME OF TAKING THE ASSIGNMENT, THAT THE CHECK COULD NOT BE ISSUED IN YOUR FAVOR IS EVIDENCED BY THE FACT THAT IN YOUR LETTER OF JUNE 9, 1937, TO THE POSTMASTER AT WINSLOW YOU STATED THAT YOU WOULD "SECURE UNDERWOOD'S ENDORSEMENT AND PAY HIM THE BALANCE DUE HIM AFTER DEDUCTING OUR MATERIAL BILL.'

IN VIEW OF THE FACTS IN THIS CASE, THE TERMS OF SAID SECTION 3477, REVISED STATUTES, AND THE DECISIONS OF THE COURTS WITH RESPECT THERETO, THERE MAY NOT BE RECOGNIZED BY THE UNITED STATES THE PURPORTED ASSIGNMENT TO YOU OF THE CLAIM UNDER CONTRACT NO. PB-DE-8, DATED MAY 17, 1937. THE ARRANGEMENT YOU MADE WITH MR. UNDERWOOD CANNOT OPERATE TO IMPOSE ANY DUTY ON THE UNITED STATES IN THE MATTER OF ASSISTING YOU TO EFFECT COLLECTION ON THE CHECK WHICH IS RETURNED HEREWITH. IT IS FOR YOU TO LOCATE MR. UNDERWOOD AND SECURE HIS ENDORSEMENT ON THE CHECK. IF YOU ARE UNABLE TO LOCATE HIM, APPROPRIATE COURT PROCEEDINGS MAY BE INSTITUTED. SEE LINDBERG V. HUMPHREY, 289 FED. 901, AND JONES V. RUTHERFORD, 26 APP.D.C. 114.