Sharp v. Edgar — 3 N.Y. Super. Ct. 379

Majority

p. 379

Sharp v. Edgar.

Headnote

A contract was entered into by G., with the proprietors of a pier, for the performance of certain work thereon, to be paid for in instalments as the work progressed. Before the completion of the work, G. assigned to the plaintiff all the payments then clue, and thereafter to become due, upon the contract, authorizing him to receive and collect the same, when duo, and to acquit, receipt, and discharge the same. Notice of this assignment was given to the owners of the pier. Held, that the assignment was valid and effectual to vest in the plaintiff the right of the assignor to the payments ; and that on the completion of the work, he might maintain an action in his own name, (under the code of procedure,) for an instalment which had become due.

(Before Oakley, Ch. J., and Vahderpoel and Samdfokd, J.J.)

Nov. 13, 14;

Dec. 15, 1849.

This was an action brought after the code took effect, for the recovery of a payment due upon a contract, entered into by the

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defendant and others, with one Lewis B. Griffin, and assigned to the plaintiff by Griffin.

The complaint alleged, that in August, 1848, the defendant and several others, owners of Pier No. 11, ¾ ortlx River, made a contract with Griffin, by which Griffin agreed to perform certain work in sheathing and extending the pier, and furnishing the necessary materials, in accordance with certain plans and specifications, for the sum of $8670. The contract provided, that payment should be made from time to time, upon the production of the superintendent's certificates, each of the parties to be liable only for the payment of his proportion of the sum agreed to be paid, according to his interest in the pier. That, on the 4th September, 1848, Griffin duly assigned to the plaintiff, by an instrument under his hand and seal, all payments due, or to become due, upon the contract, and that notice of the assignment was thereupon given to the defendant. That Griffin proceeded, and complied with the contract on his part, and performed the work stipulated. The complaint further alleged, that the superintendent’s certificate was given December 12, 1848, by which the second payment became due, and that the proportion due fn>m the defendant, in respect of his interest in the pier, wm Abb» 7o; which had been demanded and refused.

The answer admitted the making of the contract, and that a paper, purporting to be an assignment by Griffin, was shown to the defendant; but whether it was a valid assignment or not, or whether an assignment of the whole or part of the payment, he was ignorant; but he did not recognize the paper as a notice binding on him. That when the first payment upon the contract became due, the defendant deposited his proportion in the hands of tlie superintendent, to be paid when called for. That the same was paid upon the order of Griffin, the order being made payable to plaintiff. That the second payment was paid by the superintendent, to Griffin in person, upon his request, and on the production of the proper certificate, which payment, it was insisted, was valid and legal, and a bar to the claim of the plaintiff.

The cause came on for trial June 25th, 1849, before YaNdeb-poel, J. After proof of the contract, the plaintiff read in evi

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dence the assignment from Griffin to the plaintiff, duly acknowledged and recorded, December 28, 1848. It appeared, that notice of the assignment to plaintiff was given to the defendant, September 25th, 1848, and that he was notified not to make any more payments to Griffin. That the defendant read the assignment, and told the party giving the notice, that he had better see the superintendent. That accordingly, two or three days afterwards, notice in like maimer was given to the superintendent. It appeared, on the part of the defendant, by the testimony of the superintendent, that he was called on by the plaintiff for the first payment. That the plaintiff demanded payment as assignee. That the witness declined paying him without a written order from Griffin, which was subsequently furnished, dated November 1, 184-8, made payable to the plaintiff, and that the first payment was made upon this order. It was also proved, that the third payment ivas made in like manner, by Griffin’s order, dated January 12th, 1849; and that in all cases the certificate ivas made out in Griffin’s name, and given to hi m.

The court charged the jury, that the contract was assignable, and that a compliance with the request for an order, ivas not a waiver of the notice given to the defendant.

The jury found for the plaintiff for the amount claimed, on which a judgment ivas entered, and the defendant appealed.

Gerard W. Morris, for the defendant.

I. This contract ivas not assignable. First, there are no assignable words in the contract. Second, it assigns no debt due or to become clue, but a possibility merely, which is bad. (Bacon’s Abr. Title, Assignment, and cases there cited.) Third, it is a personal contract, depending upon the skill, honesty, and integrity of the one party, and the responsibility of the other, and cannot be assigned without fall assent of both parties. When made, there was no assignable interest as between Griffin and Sharp. (Clinton v. Fly, Fairfield’s R. 292; Ernmerson v. Fisher, 6 Greenleaf’s R. 200; Hall v. Gardner, 1 Mass. 172 ; Hams v. Coburn, 8 Mass. 299 ; Eyer v. Chase, 19 Pick. 556 ; Carpenter

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v. Providence Ins. Co. 18 Peters 498 ; Etna Ins. Co. v. Tyler, 16 Wend. 397 ; Wilson v. Hill, 8 Metcalf, 68; Pobson v. Drum- mond2 Barn. & Adol. 303.) Fourth, if this assignment be valid, it would destroy the statutes in favor of mechanics’ liens. (Laws of 1844, page 339.)

II. The contract is indivisible, and if assignable in part may be assigned for whole. You cannot assign over the payment, leaving assignor to do the work. Nor so that assignee shall do it; one on whom the party never relied or intended.

III. The production of an order from Griffin, after notice of assignment given, and the certificate of the superintendent in his name, is a waiver of the original notice.

I). I). Field, for the plaintiff.

1. The issue made by the pleadings, is, whether the money due on the contract between the defendant and Griffin, was assigned to the plaintiff.

2. The assignment ivas duly proved, and there is no valid objection to its validity, or the obligation it imposed upon the, defendant to make the payments to the plaintiff. (2d Story’s Equity Jur. 1040, et seq.; 4 Sim. 524, Douglass v. Bussell,/ 2d Story’s Rep. 630, Mitchell v. Winslow) The assignment was in effect, the substitution of another person to receive the money when due.

III. The plaintiff’s compliance with Oruiksliauk’s request to procure an order from Griffin, in two instances, was not a waiver of plaintiff’s rights under the assignment.

By the Court.

The defendant resists the plaintiff’s right to recover, on the ground that the contract was not assignable. Section 111 of the code of procedure provides, that every action must be prosecuted in the name of the real party in interest, and if the cause of action here was assignable, it was competent for the plaintiff to maintain the action. It is a general rule, that all dioses in action may be assigned in equity, and the assignee has an equitable right, which he may enforce in the name of the assignor. (Bac. Abr. Title “ Assign

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ment” A; Wheeler v. Wheeler, 9 Cow. 34 ; Eastman v. Wright, 6 Pick. 316 .) The provision of the code renders the intervention of a court of equity now unnecessary, as the assignee, who is the party in interest, may bring a suit, directly in his own name.

The defendant contends, that this is a personal contract, depending upon the skill, honesty, and integrity of the one party, and the responsibility of the other, and therefore cannot be assigned.

If there be any force in this position as an abstract proposition, an abundant answer to it here is, that nothing is assigned but the payments on the contract. These payments, of course, must be earned by Griffin, before any right of action can accrue in his favor, or in favor of the plaintiff. Griffin is not, by virtue of the assignment, exonerated and discharged from the burthen imposed upon him by the contract. lie must perform the work, according to the contract, before any liability can be raised from the defendants to any one. The defendants maintain unimpaired all their right to the skill, honesty, and integrity of the assignor, notwithstanding the assignment. The want of skill of Sharp, the plaintiff, is not substituted for the skill of Griffin, which the defendants contend may, with them, have been the principal inducement to this contract.

There are contracts imposing a mere personal trust upon a party, which are not assignable. The case of Hall v. Gardiner, 1 Mass. 172 , and Davis v. Coburn, 8 Mass. 299 , exemplify this principle. In both these cases, it was held that ail indenture of apprenticeship is not assignable by the master, because he has a mere personal trust. So where a party by assigning does an act, which is tantamount to saying, that he will not perform Ms part of a contract, not yet executed, he cannot, by-assigning, impose upon the other party the obligation of performing to his assignee. (Robson v. Drummond, 2 Barn. & Adol. 303.) was a case of this description, where, A. a coach-maker entered into an agreement to furnish B. with a carriage, for the term of five years, at seventy-five guineas a year. Before the expiration of the first three years, A. assigned all his interest in the business and in the contract in question to G. and

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the business was afterwards carried on by C, alone. The assig-nee brought an action for the two payments, which, according to the terms of the contract, would become due during the last two years of its continuance. It was held that the action was not maintainable; that A. by transferring all his interest in the establishment to C., had become incapable of performing his part of the contract. The party with whom the defendant originally contracted, having placed himself in a position where he could not perform Ms part of the contract, the defendant was justly held to be discharged. That is not like the present case. Here, Griffin, by assigning the payments, did not disable himself from performing the service, which was a condition precedent to the de leudan t’s 1 i ab i 1 i ty,

There is another class of cases, in which assignments will not be upheld, either in equity or at law, as being against the principles of public policy. (1 Story Eq. Jur. § 1040, d. p. 395.) An officer in the army will not be allowed to pledge or assign Ids commission by way of mortgage, for his commission is an honorary personal trust. In like manner, the profits of a public office would seem, upon a similar ground of public policy, not to be assignable. (Palmer v. Bate, 2 Brod. & Bing. 673; Davis v. Duke of Marlborough, 1 Swanst. 79.) It has been questioned by some jurists, whether pensions from government are assignable. (1 Story Eq. Jur. p. 397.) But in England they are, under certain circumstances, held now to be assignable. ( Wills v. Foster, 8 Mees. & Welsb. 149. Ex parte Battine, 4 Barn. & Adolp. 690.) We do not consider this case as coming within the principles of any of the cases in which contracts or dioses in action have been held not to be assignable; and that the plaintiff here is entitled to recover. Motion for new trial denied.