Billings v. O'Brien.

By the Court, RoBnsrsosr, J.—This was an appeal from a judgment of the third district court, in an action brought “ for money converted by the defendant to his own use, received by him as the agent of' the plaintiff, to the amount offifty-eight dollars and thirty-one cents.” The answer was, first, a general denial; and, second, that the transaction was void as against public policy. The plaintiff’s business was that “ of purchasing public pay and claims against the government.” The defendant, at the time of this transaction (in 1872), was an inspector in the New Tort (U. S.) customhouse, whose pay was four dollars a day, payable monthly. On the case, as presented, it appears* the plaintiff had, on occasions previous to September, 1872, purchased or bargained for the purchase of defendant’s monthly pay or salary, or some interest therein ; and on the second day of September-fifty-five dollars and seventy-four cents being due him for an existing debt, he (as he testifies) bought of defendant his pay for the month of September, payable on the first of October, for the sum of sixty-one dollars and thirty-one cents. Defendant however, in October, collected the whole of his September salary, and only repaid the plaintiff three dollars on account; so that plaintiff claims and has recovered fifty-eight dollars and thirty-one cents as and for the balance of his interest in those moneys. The alleged transfer was not in writing, nor was any evidence of the claim or demand against the government accepted or received by the plaintiff, nor (so far as I can discover from the testimony) was any part of' the purchase-money then, or at any time, paid as required by the statute of frauds (2 R. S., 136, § 3). The transaction, as testified to, was entirely [399] by parol, and no act was shown conformatory of the contract. Error occurred on the trial and in rendering the judgment. First. In denying defendant’s counsel the right, on cross-examination, to elicit what transpired in the conversation that occurred when the transfer was alleged to have been made. To the inquiry of plaintiff, then on the witness stand, “ What then took place ? ” he answered “ I told Mr. O’Brien that I should expect a full settlement at the end of the month.” Q. What did Mr..O’Brien say to you? A. He admitted that he would settle; I saw him in my office. Q. What did he say to you when he came in ? A. He said that was all he could give me—five dollars; next he said that was the best he could do; that was on the sale of the month previous. Q. What did Mr. O’Brien say to you, and what did you say to him, when the transaction with regard to the alleged sale of the salary—of his salary as inspector in the custom-house? (Objected to; ruled out; exception.) The effort of the defendant to elicit from the plaintiff the basis of his claim was futile, as his questions were evaded, and that directly pointing to the very transaction in dispute was excluded by the justice. This was manifest error. Secondly. He also erred in refusing to dismiss the case on the ground that, according to the plaintiff’s evidence, he does (did) not make out a conversion of the money of the defendant according to the rules of law. ls¿. Ho title by sale was proven within the statute of frauds (2 R. S., 136, § 3, sub. 2 and 3). 2d. If shown it was only of a joint interest or share, but not of any moneys exclusvoely belonging to the plaintiff and received by the defendant as his agent. At most he would have a right to participate pro rata in any moneys collected for the month’s salary and to an account, or to recover as for violation of an executory contract to collect the" whole and pay plaintiff his proportion in respect to which in neither [400] aspect could any claim for conmersion of moneys received in a fiduciary capacity be sustained. Thirdly. The alleged sale by the defendant of his salary as a public officer, previous to its having been earned, was void as against public policy for the reason that such an act tends to diminish the responsibility, independence and integrity of the officer, and impair that singleness of purpose which his duty exacted. So much of the doctrine of the English courts on this sub- . ject as is founded on considerations of upholding the dignity of the government or the state, or respectability of office growing op* .jthe wealth or station of the officer, are undoubted!) aplicable eithér to our condition of society or to any puum policy incident to the simple forms and requirements of a republican government; that neither requires or recognizes any such aids to its dignity or estimation. It only exacts-from its officers an honest and faithful devotion to the performance of their duties. But, notwithstanding the difference in our government from that of England, from which we mainly derive our laws, and adopt, as .by inheritance, the principles of justice that had there been recognized and established previous to our coming into existence as a nation, there yet remains in the considerations that influence the English courts in condemning the sale of the salary of a public officer, while accruing or before it became due, the important one first above stated, that it tended to impair the efficiency of the officer by diminishing his interest in the performance of his duties, and rendering him, to a great extent, the mere slave or servant of his creditor or assignee in working out a past' debtor obligation. In private transactions wages or other benefits expected to be earned or realized under a subsisting employment or course of dealing maybe assigned (Crouch agt. Martin, 2 Verm., 595; Thayer agt. Kelly, 28 id., 20; Hartley agt. Tapley, 2 Gray, 567; Taylor agt. Lynch, 5 id., 49; Field agt. The [401] Mayor, &c., of New York, 6 N. Y., 179), but not such as ' are entirely indefinite and in expectancy under some possible future contract (Emery agt. Lawrence, 8 Cush., 151; Mulhall agt. Quinn, 1 Gray, 105; Munsell agt. Lewis, 4 Hill, 635). A pension or salary accrued for past services may be assigned, but on grounds of public policy. One made or allowed to secure to the state the performance of future services or duties is inalienable (Flarty agt. Odlum, 3 P. R., 681; Stone agt. Lidderdale, 2 Ath., 533 ; Davis agt. Duke of Marlborough, 1 Swan, 79; Cooper agt. Reilly, 2 Sim., 590 ; Palmer agt. Bate, 2 Brod. & B., 673; Hill agt. Paul, 8 Cl. & Fin., 307; Story Eq. Jur., §§ 294, 1040 d, to f; 1 Pars. on Cont., 194), “it being contrary to the public policy of the law that a stipend to one man for future services should be transferred to another who could not perform them ” (Barwick agt. Read, 1 H. Bl., 627), “ the reward being a consideration for some continuing duty or service ” ( Wells agt. Foster, 8 Mees, & Wells., 148; and as Lord Avanley, C. J., says in Arbuckle agt. Cowtan, 31 Bos. & Pul. 328): “ It is now clearly established that the half-pay of an officer is not assignable, and unguestionably any salary paid for the performance of a public duty ought not to be perverted to other uses them those for which it is intended.” , This principle, accepted and adopted by judges Story and Parsons in their elementary treatises, I do not find innovated upon by any decisions of any courts of the United States, except that in Brackett agt. Blake (8 Met., 335) it was held, in / a contest between creditors, such an assignment of the salary of a city officer would prevail as against an attachment by a creditor after it became due; and in State Bank agt. Hastings (15 Wis., 75), where it was held by a divided court that such an assignment of the accruing salary of a judge was valid, notwithstanding his subsequent revocation or repudiation of ' the authority he had given for its collection by the assignee. In this case the prevailing opinion assumes that the doctrine of the English cases “ was not applicable to the condition [402] of society, or to the principles of law or of public policy in this country,” and this was the reason assigned for disregarding them. This conclusion is erratic and unsatisfactory, and furnishes no substantial ground for rejecting the authority of the long line of decisions referred to that establish the invalidity of the assignment of the accruing salary of a public officer, as against public policy, for the just and considerate reasons above stated; but, Fourthly. The alleged transfer was in contravention of the policy and within the prohibition of the act of congress of February 26, 1853 (10 Stat., 170; Dunlap’s Laws U. S., 1367; 1 Bright, 132), which declares ahy transfer of any claim upon the United States, or any part or share therein, absolutely null and void, unless the same shall be freely made and executed in the presence of at least two attesting witnesses. “After the allowance of such claim, the ascertainment of the amount due and the issuing of a wcvrramt for the payment thereof.” The right to collect the monthly salary of an officer under the United States government certainly can only accrue upon the occurring of some of the circumstances or conditions of its payment; and any assignment, in anticipation thereof, is declared wholly void. The subject of the salary of its officer is entirely within the control of such laws as congress may pass in relation thereto; and full force must be given to its enactments, without regard to such principles of the common law as might prevail in respect to assignment of private claims or demands. For these reasons the judgment should be reversed. ■ All the judges concurred.