City of Omaha v. Standard Oil Company
| Decision Date | 09 June 1898 |
| Docket Number | 8105 |
| Citation | 75 N.W. 859,55 Neb. 337 |
| Parties | CITY OF OMAHA v. STANDARD OIL COMPANY |
| Court | Nebraska Supreme Court |
ERROR from the district court of Douglas county. Tried below before AMBROSE, J. Reversed.
REVERSED.
E. J Cornish, for plaintiff in error.
Hall McCulloch & Clarkson, contra.
On January 29, 1892, the Metropolitan Street-Lighting Company, hereafter called the lighting company, entered into a written contract with the city of Omaha to light certain of its streets with gasoline lamps for the period of two years. The consideration was to be paid in monthly installments. The Standard Oil Company, the plaintiff herein, furnished the necessary oil, and, at one time, loaned a considerable sum of money to the lighting company to enable it to carry out its contract with the city; and to secure an indebtedness thus incurred the lighting company, on the 14th day of October, 1892, assigned to the plaintiff the money due under the contract for that month. Subsequently the lighting company made another assignment of a portion of the same fund to some of its laborers in payment of wages; and the city authorities, claiming to have no notice of the first assignment, paid the amounts called for by the second. The plaintiff then commenced this action, which resulted in a finding and judgment against the city for the whole amount due the lighting company under the contract for the month of October. The city prosecutes error to this court and urges a reversal of the judgment on various grounds, only one of which we find it necessary to consider.
It may be conceded that, while a contract right to render personal services cannot be assigned without the consent of the person to whom the services are due, the right to receive pay for such services when rendered stands upon a different ground and is assignable in the absence of a statute or stipulation in the contract forbidding it. The authorities, we believe are in entire accord upon this proposition. And the validity of such an assignment, it seems, does not at all depend upon the money being presently due and payable. If the fund has a potential existence--that is, if it will become due in the future under the terms of a contract already made--the assignment vests an equitable title thereto in the assignee subject to all prior charges. (Brill v. Tuttle, 81 N.Y. 454; Leahy v. Dugdale, 27 Mo. 437; Brown v. Dunn, 50 N.J.L. 111, 11 A. 149; Hawley v. Bristol, 39 Conn. 26; Devlin v. Mayor, 63 N.Y. 8; Cutts v. Perkins, 12 Mass. 206.) So the assignment of the October installment was valid and the plaintiff acquired an equitable property therein, unless the right to assign was prohibited by the contract itself, which contained the following provision: "It is further agreed between the parties hereto that the party of the second part shall not assign this contract without first obtaining the consent of the first party indorsed hereon in writing." Counsel for the plaintiff insist that this stipulation was directed against the assignment of the obligation resting on the lighting company to perform the work required by the contract, and was not intended to prevent an assignment of the money to be earned thereunder. That view was accepted by the trial court, but we think it is not warranted by a just interpretation of the language employed. The inhibition, it will be noticed, is not alone upon the assignment of the obligation to light the streets, but upon the assignment of the contract. What was the contract between the parties? Certainly one of its important elements was the duty laid upon the city to make monthly payments to the lighting company for the services rendered, and another was the correlative...
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