Kingsbury v. Burrill

• Decision Date: 27 February 1890
• Citation: 24 N.E. 36,151 Mass. 199
• Parties: KINGSBURY v. BURRILL et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

151 Mass. 199

24 N.E. 36

KINGSBURY v. BURRILL et al.

Supreme Judicial Court of Massachusetts, Suffolk.

February 27, 1890

COUNSEL

Arthur F. Means, for plaintiff.

Charles P. Greenough and James P. Parmenter, for defendant Burrill.

OPINION

C ALLEN, J.

The defense in this case is made by Burrill alone, and it rests substantially, on three grounds: (1) That the plaintiff has no claim which he can enforce against the city; (2) that the assignment or agreement of Burrill was limited by its terms to such claim as Burrill might legally enforce against the city; (3) that such an expectation as Burrill had, in 1867 of obtaining money from the city, was not assignable, even if he used words sufficient to cover it, because what he then had was merely the expectation or hope of a gratuity from the city.

1. The city makes no objection to the plaintiff's claim, and its answer says that it is ready and anxious to pay over the money to the person or persons entitled to receive it. An assignment of a fractional part of a claim is good, in equity, when the person who is to pay raises no objection. James v. Newton, 142 Mass. 366, 8 N.E. 122. No objection on this ground is open to Burrill, since the city raises none.

2. Burrill's agreement, by its fair scope and meaning, included one-eighth of all that he should receive from the city by reason of his services rendered under the contract signed by the mayor of the city. Though this contract was invalid, and though the sum finally paid must be deemed a gratuity, there is no doubt that it was paid by reason of services which were considered valuable, though he had no legal claim for payment for them, and that those services were the services contemplated in the contract signed by the mayor. Though the money was paid as a gratuity, after the invalidity of the contract had been established, it was nevertheless paid on account of said contract, that is, because such a contract had been made, and services had been rendered under it; and it would be too narrow a construction to hold that he only agreed to pay to Crane one-eighth part of what he might by law be entitled to recover upon the contract.

3. Such agreement is valid in equity, as between the parties; no adverse rights of third parties having intervened. It is an agreement to transfer the property when it shall be obtained. If the property were tangible, possession might be taken at once upon its being...