Present: All the Justices 

RICHARD C. EDMUNDS, JR. 

 OPINION BY JUSTICE LEROY R. HASSELL, SR. 

v. Record No. 001079 April 20, 2001 

CBC ENTERPRISES, INC. 

FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK 

Junius P. Fulton, III, Judge 

 In this appeal, we consider whether the plaintiff 

presented sufficient evidence to establish that he had 

received an equitable assignment of certain contract payment 

obligations. 

 Richard C. Edmunds, Jr., filed his motion for judgment 

against CBC Enterprises, Inc. (CBC). Edmunds alleged that CBC 

had executed two separate subcontracts with Abatement 

Controllers/JWG, Inc. (Abatement), and that Abatement assigned 

its rights to receive payments due under the subcontracts to 

Edmunds. Edmunds alleged that CBC failed to pay him in 

accordance with the purported equitable assignment. 

 At a jury trial, CBC made a motion to strike Edmunds' 

evidence. The circuit court took the motion under advisement 

and at the conclusion of its case, CBC renewed the motion. 

The circuit court held that Edmunds failed to present 

sufficient evidence which would permit a jury to find that an 

equitable assignment existed, granted the motion to strike, 

and entered a judgment in favor of CBC. Edmunds appeals. 
 Because this case was decided upon a motion to strike, we 

will state the evidence and all reasonable inferences fairly 

deducible therefrom in the light most favorable to Edmunds. 

Rizzo v. Schiller, 248 Va. 155, 157, 445 S.E.2d 153, 154 

(1994). CBC, a general contractor, entered into a contract 

with the United States Department of the Navy to perform 

certain construction work at the United States Naval Station 

in Norfolk. CBC subsequently executed two subcontracts with 

Abatement. Robert L. Snow, Abatement's president and owner, 

signed the subcontracts on behalf of Abatement. Edmunds, an 

individual engaged in numerous business activities, provided 

operating capital to Abatement in connection with the 

subcontracts that Abatement had with CBC. 

 Abatement had performed demolition work for CBC on prior 

construction projects, and Edmunds had provided operating 

capital to assist Abatement on those projects. During each of 

those projects, CBC forwarded a letter to Abatement which 

stated that payments due Abatement for work performed under 

its subcontracts would be made directly to Edmunds at his home 

address in Richmond. 

 In the summer of 1995, Snow apparently informed Edmunds 

that Abatement had planned to execute two subcontracts with 

CBC to perform demolition services at the United States Naval 

Station in Norfolk. Edmunds agreed to provide operating 

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capital to Abatement on this project. Edmunds contacted 

Richard Jakobowski, a vice president with CBC. Edmunds 

informed Jakobowski that Edmunds had an agreement to provide 

operating capital to Abatement and requested that CBC forward 

to Edmunds a written acknowledgment that it would pay funds 

from the subcontract that were owed to Abatement directly to 

Edmunds as CBC had done on former projects. Jakobowski 

responded that he was "extremely busy" and that "he would get 

on it when he could." 

 In October 1995, Jakobowski informed Edmunds that CBC had 

changed its policy, and that CBC would not send checks for 

work performed by Abatement to him. Edmunds requested a 

meeting with Jakobowski and during the meeting, which was 

attended by Edmunds, Jakobowski, and Snow on November 6, 1995, 

Jakobowski explained again that CBC had changed its policy, 

and it was unwilling to issue checks payable to Edmunds for 

work that Abatement had performed on the project. Edmunds 

responded by asking Jakobowski to approach CBC's management 

and request written acknowledgment of an assignment as had 

been provided during previous projects. If CBC was unwilling 

to issue a written acknowledgment, Edmunds asked that CBC 

issue joint checks payable to Edmunds and Abatement. If CBC 

was unwilling to issue joint checks, then Edmunds requested 

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that the checks be made payable to Abatement and forwarded to 

Edmunds at his Richmond address. 

 On November 6, 1995, Snow delivered a letter to 

Jakobowski which stated in part: 

"Please send all future payments for the Camp-Allen 

Project, [sic] to Mr. R. C. Edmunds Jr. [sic] 6014 

St. Andrews La. Richmond, Va. 23326. Please make 

these joint checks to R. C. Edmunds an [sic] JWG 

Inc." 

On November 7, 1995, CBC and Abatement executed a change 

order, described as Change Order No. 2, which stated: 

 "In accordance with . . . our Agreement, be 

advised that your Subcontract for performing the 

exterior site work demolition required by the 

project plans and specifications . . . is hereby 

administratively modified to accommodate your 

request relative to where the check is mailed. The 

new mailing address will be as follows: 

 Abatement Controllers 

 c/o Mr. R. C. Edmonds [sic] 

 6014 St Andrews Lane 

 Richmond, VA 23326" 

 Apparently unbeknownst to Edmunds, on December 8, 1995, 

Snow delivered a memorandum to Jakobowski which stated in 

part: 

 "Void Change Order No. 2 dated Nov. 7-95. 

Please pay all checks directly to Robert Snow to 

pick up by him only. Thank you for your cooperation [sic]." 

 Edmunds did not receive any payments directly from CBC 

after Change Order No. 2 was executed. On December 12, 1995, 

CBC issued a check in the amount of $34,913 payable solely to 

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Abatement for work it had performed on the project. Snow died 

in 1998, and the trial of this case commenced on February 8, 

2000. 

 Edmunds argues that the circuit court "erred in ruling 

that there was insufficient evidence to establish that 

Abatement had assigned to Edmunds funds due it for work it 

performed under subcontracts with CBC." We disagree with 

Edmunds. 

 Our resolution of this appeal is governed by familiar and 

well-established legal principles within the jurisprudence of 

this Commonwealth. "It is settled law that as a general rule 

the obligation arising under a contract may be assigned to a 

third party, the assignment or transfer may be made to appear 

by oral statements of the parties, or by their acts and 

conduct." Dove Co. v. New River Coal Co., 150 Va. 796, 826-

27, 143 S.E. 317, 327 (1928). 

 An assignment is a transfer, but every transfer does not 

constitute an assignment. Kelly Health Care v. Prudential, 

226 Va. 376, 379, 309 S.E.2d 305, 307 (1983). "To constitute 

an equitable assignment there must be an assignment or 

transfer of the fund or some definite portion of it, so that 

the person owing the debt or holding the fund on which the 

order is drawn can safely pay the order, and is compellable to 

do so, though forbidden by the drawer." Hicks v. Roanoke 

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Brick Co., 94 Va. 741, 745-46, 27 S.E. 596, 598 (1897). 

Additionally: 

 "It is well settled in this jurisdiction that 

since equity disregards mere form, no particular 

words or acts are necessary to effect an equitable 

assignment. The intention of the assignor is the 

controlling consideration. The intent to transfer a 

present ownership of the subject matter of the 

assignment to the assignee must be manifested by 

some word, written or oral, or by some act 

inconsistent with the assignor's remaining as owner. 

This has sometimes been called a 'present 

appropriation.' The assignor must not retain any 

control over the fund or property assigned, any 

authority to collect, or any form of revocation. 

See Switzer v. Noffsinger, 82 Va. 518; Chesapeake 

Classified Building Association v. Coleman & Others, 

94 Va. 433, 26 S.E. 843; Rinehart & Dennis Co. v. 

McArthur, 123 Va. 556, 96 S.E. 829; Va. Machinery & 

Well Co. v. Hungerford Coal Co., 182 Va. 550, 29 

S.E.2d 359 . . . ." 

Nusbaum & Co. v. Atlantic Realty, 206 Va. 673, 681, 146 S.E.2d 

205, 210 (1966). 

 In Kelly Health Care, 226 Va. at 379, 309 S.E.2d at 307, 

we emphasized that to establish a valid assignment, the 

assignor must not retain any control over the fund or property 

assigned, any authority to collect the fund or property, or 

any form of revocation of the fund or property. Simply 

stated, if the assignor retains any control whatsoever over 

the fund or property to be assigned, then an assignment has 

not been effected. 

 Applying the aforementioned principles, we hold that the 

circuit court did not err in granting CBC's motion to strike 

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Edmunds' evidence. Edmunds failed to present sufficient 

evidence which would have permitted the jury to find that 

Abatement relinquished control of the funds that CBC owed 

Abatement for the demolition work Abatement had performed. 

The uncontroverted evidence of record indicates that Snow had 

directed CBC to issue checks jointly payable to Abatement and 

Edmunds. Edmunds failed to present evidence that Snow, acting 

on behalf of Abatement, intended to relinquish all control of 

the funds, and Abatement's directive that CBC issue joint 

checks demonstrates that Abatement intended to retain some 

degree of control over the property that was purportedly 

assigned. For example, Code § 8.3A-110(d) provides: "If an 

instrument is payable to two or more persons not 

alternatively, it is payable to all of them and may be 

negotiated, discharged, or enforced only by all of them." 

 We recognize that in Virginia Machinery & Well Co. v. 

Hungerford Coal Co., 182 Va. 550, 29 S.E.2d 359 (1944), we 

held that a transfer constituted an equitable assignment even 

though the assignor had directed the holder of the assigned 

fund to issue a joint check payable to both the assignor and 

assignee. In Virginia Machinery & Well Co., the assignor 

testified without contradiction that he intended to give 

absolute control and absolute ownership of the money that 

would be owed to him under a contract to the assignee and that 

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the assignor requested checks payable jointly because the 

holder of the fund, a financial institution, wanted a receipt. 

Id. at 554-55, 29 S.E.2d at 362. The assignee also testified, 

through its president, that it would have complete control 

over the fund. Id. at 555, 29 S.E.2d at 362. We held that 

the assignment at issue in Virginia Machinery & Well Co., 

"according to the undisputed evidence, transferred 

absolutely and unconditionally all of the interest 

of the assignor in the fund and [the assignee] 

testified that such was his intention. The method 

for making the payment by a joint check was only for 

the purpose of providing a receipt to [the holder of 

the fund] and giving information to [the assignor] 

of the amount received by [the assignee]." 

Id. at 557, 29 S.E.2d at 363.*

 Unlike the assignee in Virginia Machinery & Well Co., 

Edmunds failed to present sufficient evidence that Abatement 

had relinquished control of the fund that CBC would owe to 

Abatement after it had performed the work. Indeed, Snow's 

memorandum which "voided" the change order directing CBC to 

forward checks to Edmunds' Richmond address suggests that 

Abatement had not intended to relinquish control of the 

payments owed to it by CBC. 

 *

 Former Code § 5603, which was in effect at the time this 

Court decided Virginia Machinery & Well Co. stated: "Where an 

instrument is payable to the order of two or more payees or 

indorsees who are not partners all must indorse unless the one 

indorsing has authority to indorse for the others." We did 

not discuss what effect, if any, this former statute had upon 

8
 Edmunds, relying upon Alexander Building v. Richmond 

Plumbing, 213 Va. 470, 193 S.E.2d 696 (1973), argues that this 

Court has held that an equitable assignment existed when an 

assignor requested a debtor to issue checks jointly payable to 

the assignor and the assignee. In Alexander Building, a 

general contractor was retained to construct an apartment 

project. W. G. Satterwhite was a subcontractor employed by 

the general contractor, Alexander Building. Satterwhite 

purchased supplies from Richmond Plumbing. Richmond Plumbing, 

concerned about Satterwhite's credit, advised him that it 

would not supply materials unless he could give assurance of 

payment. 

 Satterwhite requested in a letter to Alexander Building 

that it issue checks for all further payments due Satterwhite 

jointly to Richmond Plumbing and Satterwhite. Alexander 

Building's authorized agent signed the letter "accepted," and 

the letter was returned to Richmond Plumbing's agents. 

Alexander Building issued a check payable to Richmond Plumbing 

and Satterwhite as joint payees and after Satterwhite endorsed 

the check, Richmond Plumbing deposited the check in its 

account. Subsequently, upon Satterwhite's representation that 

he had "settled" with Richmond Plumbing, Alexander Building 

 

the equitable assignment at issue in Virginia Machinery & Well 

Co.

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delivered to Satterwhite a check made payable solely to 

Satterwhite for the balance due on his subcontract with 

Alexander Building. Richmond Plumbing later discovered that 

Alexander Building had made the final payment to Satterwhite 

even though Satterwhite was still indebted to Richmond 

Plumbing in the amount of $2,494.82, the balance owed for 

certain materials that Richmond Plumbing had supplied to 

Satterwhite for the project. We held that the circuit court 

did not err by ruling that an equitable assignment existed. 

Id. at 471-72, 193 S.E.2d at 697-98. 

Alexander Building, however, is not controlling here. We 

did not discuss in Alexander Building whether Satterwhite, the 

assignor, had relinquished his control over the property 

assigned. That issue was simply not discussed in the opinion. 

Additionally, Alexander Building's authorized agent agreed in 

writing that Alexander Building would make further payments 

that it owed to Satterwhite jointly to Richmond Plumbing and 

Satterwhite. By contrast, in this appeal, Edmunds admitted 

that CBC did not agree to issue joint checks for amounts due 

Abatement for work performed under the subcontracts. 

Additionally, the change order executed by CBC and Abatement 

on November 7, 1995, did not include a provision for the 

issuance of joint checks. 

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 Accordingly, we will affirm the judgment of the circuit 

court. 

Affirmed. 

JUSTICE LACY, with whom JUSTICE KINSER and JUSTICE LEMONS 

join, dissenting. 

 The majority concludes that plaintiff's evidence of an 

equitable assignment was properly struck by the trial court 

because Edmunds "failed to present evidence that Snow, acting 

on behalf of Abatement, intended to relinquish all control of 

the funds." To reach this result, the majority attempts to 

distinguish controlling case law and claims to apply wellestablished standards of appellate review, but fails on both 

counts. 

 To strike Edmunds' evidence, the trial court in this case 

had to conclude that the evidence was insufficient to support 

a jury verdict in his favor. The trial court was required to 

accept as true all the evidence favorable to Edmunds as well 

as any reasonable inference a jury might draw therefrom which 

would sustain his cause of action. The trial court was not to 

judge the weight and credibility of the evidence or to reject 

any inference from the evidence favorable to Edmunds unless it 

would defy logic and common sense. Austin v. Shoney's , Inc., 

254 Va. 134, 138, 486 S.E.2d 285, 287 (1997). On appellate 

11
review, we apply these same principles. Waters v. Safeway 

Stores, Inc., 246 Va. 269, 270, 435 S.E.2d 380, 380 (1993). 

 While the majority recites much of the evidence produced 

at trial, it ignores additional evidence that had been 

introduced. Beginning in 1989, Edmunds and Snow developed a 

business relationship whereby Edmunds would provide Snow with 

working capital for projects performed by Abatement. In 1993 

or 1994 when Abatement first performed work for CBC, Edmunds 

and Snow had an agreement that Edmunds "would provide the 

operating capital and when the funds came in from [Snow's] 

customer they would come to [Edmunds]." Six or seven projects 

were undertaken this way. In each of these projects, Edmunds 

received a copy of a letter sent from CBC to Snow referencing 

an agreement between Snow, CBC, and Edmunds that payments for 

the work done by Snow would be made directly to Edmunds. 

Prior to the execution of the CBC contract at issue here, 

Edmunds and Snow discussed what their business relationship 

would be if Abatement got the contract. Edmunds again agreed 

to provide Abatement operating capital for the project, and, 

in return, Edmunds was to get the "assignment of monies" to 

him. Edmunds testified that in August, "Mr. Snow had assigned 

the proceeds to me like we had previously been doing on all 

other contracts." The contract was executed between Abatement 

and Snow on August 18, 1995. Edmunds informed CBC of his 

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agreement with Snow and asked CBC for a letter like the 

previous ones confirming the assignment. CBC, however, did 

not send a letter confirming the assignment for this project 

because there was a change in company policy. 

At a meeting between CBC, Edmunds, and Snow, Edmunds 

suggested three solutions in the order of his preference: (1) 

that the former procedure be followed, (2) that the checks be 

made jointly payable to Edmunds and Abatement, or (3) that 

Abatement's checks be mailed to Edmunds in Richmond. With 

regard to the last option, Edmunds explained that because 

Abatement was a Tidewater company, by sending the checks 

directly to Richmond "there's no chance of it being mishandled 

by anybody." Edmunds could then deposit the checks into an 

already-existing bank account in Richmond set up by Snow in 

the name of Abatement Controllers/JWG, Inc. Edmunds "was the 

only authorized signature to write checks on this account for 

Abatement . . . ." Likewise, statements for the account were 

sent only to Edmunds' address. 

Following this meeting, Snow sent a letter to CBC asking 

that the checks be made jointly payable to Edmunds and 

Abatement and that the checks be sent to Edmunds at his 

address in Richmond. Change Order No. 2 was entered, 

directing that Abatement's checks be sent to Edumunds. 

However, Edmunds never received any checks from CBC because 

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CBC complied with Snow's subsequent request to void Change 

Order No. 2 and to pay Snow directly. 

The majority acknowledges that the following principles 

apply to the creation of equitable assignments, but fails to 

apply them properly to the evidence presented. Equitable 

assignments need not be written; they may be shown by the 

parties' oral statements, acts, or conduct. Va. Mach. & Well 

Co. v. Hungerford Coal Co., 182 Va. 550, 556, 29 S.E.2d 359, 

362 (1944). Although it is true that the assignor must not 

retain control over the funds assigned, the intent of the 

assignor is the controlling consideration in determining 

whether control has been relinquished. S.L. Nusbaum & Co. v. 

Atl. Va. Realty Corp., 206 Va. 673, 681, 146 S.E.2d 205, 210 

(1966). 

The majority points to four pieces of evidence in support 

of its conclusion that the evidence was insufficient to 

support a jury verdict finding the existence of an equitable 

assignment: Snow's instruction to CBC to issue jointly 

payable checks; Edmunds' admission that "CBC did not agree to 

issue joint checks for amounts due Abatement"; the failure of 

Change Order No. 2 to provide for the issuance of joint 

checks; and Snow's directive to CBC to void Change Order No. 2 

and pay Snow directly. Under our existing case law, none of 

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these facts defeats the creation of an equitable assignment as 

a matter of law. 

According to the majority, ordering the issuance of joint 

checks showed that Snow intended to retain "some degree of 

control over the property that was purportedly assigned," 

(Maj. op. Pg. 7.) thereby defeating the creation of an 

equitable assignment. However, in both Virginia Machinery & 

Well Co., and Alexander Building Construction, Inc. v. 

Richmond Plumbing & Heating Supplies, Inc., 213 Va. 470, 193 

S.E.2d 696 (1973), we held that an equitable assignment had 

been created, even though the payments by the debtor were made 

jointly to the assignor and assignee. "The form in which the 

checks were requested to be drawn neither legally nor 

equitably affected the ownership or control of the funds 

represented." Va. Mach. & Well Co., 182 Va. at 557-58, 29 

S.E.2d at 363. 

Though other evidence may prove or disprove the creation 

of an equitable assignment, jointly payable checks are, at 

most, equivocal evidence of an absence of intent to relinquish 

control over the funds and create an equitable assignment. 

For instance, in Virginia Machinery & Well Co., we noted that 

paying by joint check may be done for the purpose of providing 

a receipt to the assignor's debtor and giving information to 

the assignor of the amount received by the assignee. 182 Va. 

15
at 557, 29 S.E.2d at 363. In the context of this case, where 

checks had been made payable solely to the assignee, but the 

drawer now wished to make them payable only to the assignor, 

Snow's request for joint checks can be seen as an intent to 

ensure payment to the assignee in a manner acceptable to the 

drawer. When more than one inference can be drawn from the 

facts, the inference favoring the position of the plaintiff 

must be adopted when considering whether a motion to strike 

should be granted. The majority ignores this principle when 

it opines that Abatement's directive to issue jointly payable 

checks demonstrated an intent to maintain control over the 

funds. 

Next, the majority points to Edmunds' admission that CBC 

did not agree to issue joint checks for the funds due 

Abatement on the project. However, written confirmation of an 

assignment by the assignee's debtor does not create the 

equitable assignment; it "merely evidence[s] notice of the 

assignment." Va. Mach. & Well Co., 182 Va. at 557, 29 S.E.2d 

at 363. Thus the "admission" relied upon by the majority, 

while evidence in the case that CBC did not wish to issue 

joint checks, does not defeat the creation of the equitable 

assignment between Edmunds and Snow. 

The final two pieces of evidence supporting the 

majority's conclusion are equally deficient. The majority 

16
cites not including joint payment of checks in Change Order 

No. 2 as showing a lack of intent to relinquish control over 

the funds and to create an equitable assignment. First, that 

decision appears to have been made by CBC and does not provide 

evidence of Snow's intent. Second, this position is in direct 

conflict with the majority's earlier assumption that seeking 

joint payment shows a lack of such intent. Thus, the value of 

this evidence in supporting a conclusion that Snow did not 

intend to relinquish control over the funds and create an 

equitable assignment is suspect. 

Finally, Snow's duplicity in subsequently voiding his 

previous request to CBC regarding the joint payment and 

delivery of the checks should not be rewarded by considering 

it as proof positive that Snow never agreed to the equitable 

assignment. Of course, the posture of this case requires that 

any inferences from this evidence flow in favor of Edmunds. 

The inference here is that Snow wanted to avoid honoring his 

agreement with Edmunds. 

In both Virginia Machinery & Well Co. and Alexander 

Building, the evidence was found to be sufficient to support a 

conclusion that an equitable assignment was created. In this 

case, we need not decide whether an equitable assignment was 

created. We must determine only whether the evidence was 

sufficient to support such a finding. Whether evidence exists 

17
to support a contrary finding is immaterial at this juncture. 

The pattern of prior assignment agreements between Edmunds and 

Snow, the oral agreement testified to by Edmunds regarding the 

assignment of the funds on the project at issue, the presence 

of Snow at a meeting with Edmunds and CBC regarding Edmunds' 

request to CBC for direct payment, joint payment, or direct 

delivery of the checks to Edmunds, Snow's acquiescence in 

those requests reflected in Snow's subsequent letters and 

meetings with CBC, and the bank account established by Snow 

for Abatement's checks with Edmunds as the only authorized 

signatory all constitute sufficient evidence of Snow's intent 

to assign the proceeds of Abatement's contract with CBC to 

Edmunds. Therefore, this issue should not be decided by this 

Court or by the trial court, but rather should be submitted to 

the jury for determination. Accordingly, I would reverse the 

judgment of the trial court and remand the case for further 

proceedings. 

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