Field v. Chipley

• Decision Date: 19 February 1881
• Citation: 2 Ky.L.Rptr. 269,79 Ky. 260
• Parties: Field v. Chipley, & c.
• Court: Kentucky Court of Appeals

79 Ky. 260

2 Ky.L.Rptr. 269

Field v. Chipley, & c.

Court of Appeals of Kentucky.

February 19, 1881

1. A contract by which the clerk of the Louisville chancery court transfers and assigns to a trustee for the benefit of appellant, in consideration of a debt due him, all the fees and emoluments of his office in the future, until the debt is paid, with conditions to pay deputies, & c., is void.

2. It is against public policy that such contracts be enforced.

3. The Auditor has, under the statute, the right to look to the clerk for taxes on suits collected by him. The trustee will not be recognized as the person to receive them.

APPEAL FROM LOUISVILLE CHANCERY COURT.

BIJUR &amp DAVIE FOR APPELLANT.

1. A clerk of a court can make a valid assignment of his fees to become due.

2. The reservations in the contract for the benefit of appellee and his creditors are not binding upon appellant, appellee being the debtor and repudiating the contract. (Combs v Brashears, 6 J. J. Mar., 631; High on Receivers, sec 22; Clark v. Tilley, 31 Ind. 121; Ciples v Blain, Rice's Eq. Rep., S. C., 60; 2 Allen, 40; Benjamin on Sales, 78; Parsons on Con., vol. 1, 523; Whitehead v. Root, 2 Met., 586; 11 Iowa 572; 15 Ib., 284; 40 Penn., 276; 2 Selden, 179; 18 Pick., 168; 5 Gray, 49; Brackett v. Blake, 7 Met., Mass., 335; 2 Allen, 541; 2 Gray, 565; 28 Ver., 20; 15 Wisconsin, 75; Merriwether v. Herman, 8 B. Mon., 164; 5 Ib., 142; Speed v. Brown, 10 Ib., 110; Rodman v. Musselman, 12 Bush, 354; 2 Russell & Mylne, 35; 10 Simons, 542; 27 Law Jour. Ch'y, 592; 3 Gifford, 467; 10 Beavan, 491.)

GOODLOE, ROBERTS & HUMPHREY FOR APPELLEE.

A clerk cannot assign fees to become due for services to be performed in the future. The contract is against public policy, and is void. (Forward v. Proctor, 9 B. Mon., 124; Phillips v. Winslow, 18 Ib., 431; Ross v. Wilson, 7 Bush, 32; 9 Ib., 318; Vinton v. Hallowell; Hutchinson v. Ford, 9 Bush, 318; Gen. Stat., chap. 81, sec. 1, p. 681; Combs v. Brashears, 6 J. J. Mar., 6; Petty v. Roberts, 7 Bush, 419; 7 Mon., 10.)

OPINION

PRYOR JUDGE:

S. F. Chipley, the clerk of the Louisville chancery court, being indebted to Neill B. Field in the sum of about $28,000, evidenced by several promissory notes, for the purpose of securing its payment entered into an agreement with Field by which Chipley transferred and delivered to John G. Walker " all the demands and claims due to him, the said Chipley, as fees of his said office, which have accrued between the 1st of August, 1877, and the 27th of February, 1878, and further agreed to assign to the said Walker for a like purpose all claims due to him, the said Chipley, as fees of his said office, which shall accrue to him hereafter, or from the date of the agreement until the debt of Field is paid," the same to operate as a transfer and assignment of such claims, demands, and fees as they accrue. Walker, as trustee, was designated as the collector for the parties, and at the end of each month the trustee is to pay over to the said Field the collections made, except as follows:

He is to pay to the deputies of said clerk, as salaries, and for the other expenses of said office, $330; to S. F. Chipley, the clerk, $225; to the Farmers and Drovers' Bank, $250 on a debt of $1,300 due that bank; to the Auditor of Public Accounts, until the debt of said clerk for back taxes is paid, $115. For making transcript of records the trustee is to pay the amounts due from the office to Benj. F. Field and George McGowan. The sums collected by said Walker as taxes on suits hereafter brought shall be kept entirely separate from said account, and shall by him be paid over to the state, and the said Field is given no right thereto.

Chipley further agrees to make Field a power of attorney, giving him full power to collect or appoint collectors in Chipley's name, if Field sees proper to do so, and to distrain for the same in said Chipley's name where it is a proper cause for distraint. This last clause applies to fees already delivered to Field. The trustee is to make a monthly statement of his accounts, and the books of the office are at any time to be open to the inspection of said Field's agents or counsel for the purpose of investigating and overlooking the conduct of said trust.

The appellant Field instituted this action in equity in the Louisville chancery court, alleging that the trustee Walker had resigned his office on the 10th of February, 1879, and that Chipley, the defendant, had refused to have another trustee appointed in his stead; that Chipley is insolvent, and is proceeding to collect the fees of the office without applying the proceeds to the payment of his debt. He asks for a temporary injunction restraining the appellee from collecting his fees, and the appointment of a receiver for that purpose, and that the collections be applied in the manner agreed on by the parties. The chancellor, on the hearing below, adjudged the appellant entitled to the fees already assigned and delivered, but dismissed the action as to appellant's claim to the fees of the office to become due, or that might accrue after the date of the contract. The judgment below is made to rest on two grounds: first, it is an agreement to sell something not in existence; second, that the contract is against public policy.

As to the first question raised, counsel for the appellant has referred to several authorities sustaining the validity of such an agreement, but the whole current of authority in this state is opposed to such a doctrine. The case of Whitehead v Root, reported in 2d Metcalfe, in no manner sustains the position assumed by counsel, and instead of determining that the title to the whisky would vest in the purchaser in that case as the whisky was made, a contrary conclusion was reached, by which the appellant was confined to a recovery in damages for the failure of the appellee to comply with his contract. Root & Co., in that case, being distillers, sold to Whitehead & Co. ten thousand dollars' worth of whisky at twenty-one cents per gallon, to be delivered within twelve months from the date of the contract. The whisky was not made or in existence at the time, and the court below...