Commercial Nat. Bank v. City of Portland

• Decision Date: 26 March 1900
• Citation: 60 P. 563,37 Or. 33
• Parties: COMMERCIAL NAT. BANK v. CITY OF PORTLAND et al. [1]
• Court: Oregon Supreme Court

60 P. 563

37 Or. 33

COMMERCIAL NAT. BANK v. CITY OF PORTLAND et al. ^[1]

Supreme Court of Oregon

March 26, 1900

Appeal from circuit court, Multnomah county; J.B. Cleland, Judge.

Bill by the Commercial National Bank, substituted plaintiff, against the city of Portland and others. From a decree in favor of plaintiff, defendant city appeals. Reversed. See 54 P. 814.

In December, 1891, the city of Sellwood entered into a contract with one W.F. Dill for the improvement of Umatilla avenue, a street in such city. In carrying out his contract, Dill purchased from the Columbia River Lumber & Fuel Company, and used in the work, lumber to the value of $3,680.83, under a verbal agreement that he would give it orders for warrants on the fund for the improvement of the street as the work should be accepted. After a considerable portion of the lumber had been delivered, and in pursuance of such agreement, Dill gave the company the following order: "Portland, Oregon February 23, 1892. To J.D. Chapman, City Recorder of the City of Sellwood: You will please deliver to D.J. Moore, secretary of the Columbia River Lumber & Fuel Company, city warrants on the fund for the improvement of Umatilla avenue in said city of Sellwood, in the state of Oregon, from time to time, as work on said avenue shall be accepted, and warrants ordered drawn, equal in amount to the value of the lumber furnished by said Columbia River Lumber & Fuel Company, and used in making said improvements, now under way, to be evidenced by bills presented by said company and approved by me. W.F Dill." This order was immediately filed with the city recorder, and has ever since remained in the custody of the city of Sellwood and its successor, the city of Portland. On May 26, 1892, Dill approved a bill for lumber amounting to $1,537.73, and a warrant for that amount was issued by the city of Sellwood to the fuel company, but he refused to audit or approve any other bills for the company, and on the 25th of July, 1892, notified the city council that, "on account of nonfulfillment of contract I had with the C.R.L. &amp F. Co., I revoke all orders I have given them for warrants." Thereafter warrants were issued by the city for the balance due Dill on his contract, and delivered to him and his assignees, and the fund collected for such improvement was thereby exhausted. The fuel company subsequently commenced this suit against the city of Sellwood and others to recover the balance due for lumber furnished to Dill, on the theory that the order of February 23d operated as an equitable assignment of a portion of the fund for the improvement of the street sufficient to pay for the lumber so furnished. Thereafter the Commercial National Bank was regularly substituted as plaintiff, and the city of Portland the successor of the city of Sellwood, as defendant, and, a decree being rendered for the bank, the city appeals.

J.M. Long, for appellant.

H.G. Platt, for respondent.

BEAN, J. (after stating the facts).

The only question for our decision is whether the order of February 23d amounts to an equitable assignment. At law, a part only of an entire demand cannot be assigned, so as to enable the assignee to bring an action upon it, without the consent of the debtor; but equity recognizes that in such case the assignee obtains by the assignment an interest in the property or fund, and permits such interest to be enforced by suit. McDaniel v. Maxwell, 21 Or. 202 27 P. 952. But the proof required of an assignment or transfer is the same at law as in equity. In either case there must be such a transfer or appropriation of the fund or some definite part thereof, as to devest the assignor of any interest in or control over it, and to confer a complete and present right in the assignee. Mr. Pomeroy says that "there must be a specific fund, sum of money, or debt actually existing or to become so in futuro, upon which the assignment may operate; and the agreement, direction for payment, or order must be, in effect, an assignment of the fund, or of some definite portion of it." 3 Pom.Eq.Jur. § 1280. No particular form of words is...