East Lewisburg L. & M. Co. v. Marsh

• Decision Date: 06 October 1879
• Citation: 91 Pa. 96
• Parties: East Lewisburg Lumber and Manufacturing Co. <I>versus</I> Marsh, Dunkel et al.
• Court: Pennsylvania Supreme Court

Page 96

91 Pa. 96

East Lewisburg Lumber and Manufacturing Co. versus Marsh, Dunkel et al.

Supreme Court of Pennsylvania.

June 17, 1879.

October 6, 1879.

June 17th 1879.

Before SHARSWOOD, C. J., MERCUR, GORDON, PAXSON, TRUNKEY and STERRETT, JJ. WOODWARD, J., absent

Appeal from the Court of Common Pleas of Union county: Of May Term 1879, No. 200. In Equity.

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Linn & Dill, for appellant.—The court erred in ruling that the agreement was merely executory, an undertaking to do something in futuro. Marsh had passed his interest beyond recall. He could get possession of the property only by a violation of the trust imposed upon the agent. It was not necessary that the thing should be in esse: White & Tudor's Leading Cases in Eq., vol. 2, part 2, 1644; Caldwell v. Hartupee, 2 P. F. Smith 74; Bayler v. Commonwealth, 4 Wright 37; 2 Story Eq. 46, sects. 846, 1040, 1055; Power's Appeal, 13 P. F. Smith 445; Williams v. Nisly, 2 S. & R. 507; Sullivan et al. v. Tuck, Ex. 1 Md. Ch. 59. A pre-existing debt is a good consideration for any act on the part of the debtor that will operate as a security or payment: White & Tudor, supra.

An equitable assignment is in the nature of a declaration of trust, which a chancellor never hesitates to execute when it has been made upon valuable consideration: Nesmith v. Drum, 8 W. & S. 9; Sharpless v. Welsh, 4 Dall. 279. A draft upon a particular fund in the hands of an attorney for collection is an equitable assignment of it, and although not accepted by the attorney, yet it is not afterwards subject to be attached for the debt of the drawer: Nesmith v. Drum, 8 W. & S. 9.

Wolfe & Wilson and J. T. Baker, for appellees.—The agreement in this case lacks the following essentials of an equitable assignment, viz.: There is no specific thing assigned; there is nothing showing an intention to make a present transfer; the authority or power is not to a debtor or any one holding funds of Marsh, but to an agent, into whose hands the proceeds of the sale of reapers may or may not come. What was to prevent Marsh revoking the agency of Dunkel? Marsh had control over the property, and, therefore, there was no equitable assignment: Rodick v. Gandell, supra: White & Tudor's Leading Cases, supra. See also cases cited in opinion of court below.

[See Ruple v. Bindley, post, p. 296. — REP.]

Mr. Justice TRUNKEY delivered the opinion of the court, October 6th 1879.

Equity will support assignments of contingent interests and expectancies; things which have no present actual existence, but rest in mere possibility, not indeed as a present positive transfer operative in præsenti, for that can only be of a thing in esse, but as a present contract to take effect and attach as soon as the thing comes in esse. Story's Eq. Jur., sects. 1040, 1055; Field v. The Mayor, &c., of New York, 2 Selden (6 N. Y.) 179. In Field's case he held an assignment made by Bell to Garread of all bills that might become due to Bell for printing, paper, and stationery, done or furnished the city to the amount of $1500, subject to two prior assignments for certain sums. The bills appeared to have accrued, and most of the services and materials upon which they arose, appeared to have been rendered and delivered, after the date of the assignment from Bell to Garread. It was held that the assignment by Bell to Garread was valid as an agreement, by force of which an equitable title to the benefit of the bills, as they matured and became due, vested in Field as assignee of Garread. In reference to the allegation that the interest was too uncertain to pass by assignment, because there was no contract binding the city to furnish Bell with printing, or purchase stationery from him, the court say: "There was indeed no present, actual, potential existence of the thing to which the assignment or grant related, and therefore it could not and did not operate eo instanti to pass the claim which was expected to accrue to Bell against the corporation; but it did nevertheless create an equity, which would seize upon those claims as they should arise, and would continue so to operate until the object of the agreement was accomplished. * * * Courts of equity will support assignments, not only of choses in action, but of contingent interests and expectations, and of things which have no present actual existence, but rest in possibility only, provided the agreements are fairly entered into, and it would not be against public policy to uphold them." At the time of the assignment, Bell was engaged, under various contracts, in printing for the city, as admitted by him in his answer. Possibly this should be considered as entering into the decision of the case. In Mulholl v. Quinn, 1 Gray (Mass.) 105, an assignment of all claims which the assignor then had or might have on the first of January next on the city of Boston for all sums of money due or to become due to him for services in laying sewers, was made by one who had been previously employed by the city on a particular job; and who, after the assignment, was again employed before the first of January; but who was under no contract with the city, at the time of the assignment held, that the assignment did not pass money subsequently earned, because there was no subsisting engagement, under which wages were to be earned, and it depended altogether upon a future engagement whether anything would ever become due. But the rule was recognised that a debt conditional, uncertain in amount, or contingent, yet possible to become due, may be the subject of an assignment: for instance, where a party is under an engagement for a term of time, especially if he has entered upon his duties, although liable at any time to be removed, he has an assignable interest.

Anything which shows an intent to assign on one side, and to receive on the other, will operate as an assignment: 3 L. Cas. Eq. 307, 357. A draft on a particular fund in the hands of an attorney for collection is an equitable assignment of it: Nesmith v. Drum, 8 W. & S. 9. So is an order for part of the proceeds of a note, though not accepted by the trustee for collecting the note: Caldwell v. Hartupee, 20 P. F. Smith 74. See Cutts v. Perkins, 12 Mass. 206; Adams v. Robinson, 1 Pick. 461.

The appellees, conceding that the thing assigned may not be in esse, and that a pre-existing debt may be a sufficient consideration, contend that the writings executed by Marsh and Dunkel constitute a mere executory agreement, an undertaking to do something in futuro. The firm of James S. Marsh was engaged in manufacturing agricultural implements, and Dunkel, as general agent of the firm, was engaged in the sale of said implements for said firm, and received and receipted for the proceeds of sales. Marsh, being indebted to the plaintiffs, on May 27th 1878, authorized said agent to assume and pay over to them in approved notes or money of the proceeds of the sale of reapers of that year, to amount of $1350, as collateral security, within three months from said date. At the same time the agent agreed to turn over approved notes or money, as...