Kingsbury v. Burrill

C. Allen, J. The defence 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. 8. 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 in 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, [203] ■when the person who is to pay raises no objection. James v. Newton, 142 Mass. 366. 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 Burrill 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 acquired, and this would make a title good as against third parties. But as between the parties themselves, the right in equity attaches to the property before taking possession; in like manner as at law a title to goods bargained and sold passes to the purchaser, as between him and the vendor, without any actual delivery. Folsom v. Cornell, 150 Mass. 115, and- cases cited. In the present case there were no intervening rights of attaching creditors or other outside parties, and the question arises simply between the parties to the agreement. Burrill, by his contract under seal, agreed to pay to Crane one eighth part of this money, when it should be paid by the city. The money is now ready, and has actually been paid to a trustee for distribution according to the rights of all parties in interest. Upon such payment, the agreement becomes operative as an equitable assignment, which entitles Crane or his legal representative at [204] once to receive the money. Burrill denies this right, and a bill in equity is maintainable to establish and enforce it. This doctrine has been recognized and stated, and its limitations have been explained, in the recent case of Blanchard v. Cooke, 144 Mass. 207, and in Moody v. Wright, 13 Met. 17, in which cases, however, it was necessary to deal with adverse claims of other parties. This case is not liké Heard v. Sturgis, 146 Mass. 545, 551, where no covenant or agreement looking to the future had been made, and where the question was what present rights of a bankrupt passed to his assignee in bankruptcy. Decree affirmed.