Skipper v. Stokes

JUDGE, J. These cases constitute an appeal and a cross appeal, and both are to be tried on the same record. The principle settled in Purcell’s Adm’r v. Mather, 35 Ala. 570, is decisive of the main question involved in the litigation between the present parties. That' principle is, that a mere possibility or expectancy, not coupled with any interest in, or growing out of property, cannot be made the subject of a valid sale. In the language of Chancellor Kent, “the thing sold must have an actual or political existence, and be specific or identified, and capable of delivery; otherwise it is not strictly a contract of sale, but a special or executory agreement.” 2 Kent’s Com. 468. It results that neither of the transfers by Doctor Gillespie to the plaintiff below, of accounts “to be made by the practice of medicine,” in the years named in the tranfers respectively conveyed to the plaintiff such title or interest in the accounts, when created, as would enable him to maintain an action thereon in his own name. But it is hardly necessary to say that this principle does not affect the validity of the transfers of such accounts, if any, which had been created at the date of the contracts respectively. We are unable to perceive the distinction in principle insisted upon, between the case of Purcell’s Adm’r v. Mather, supra, and the present case. In the former, there was an attempt to convey specifically named accounts, which it was expected would be created ; here, there was a sale, not only of accounts in existence, but of all accounts generally, that might be thereafter created, in the practice of medicine by Doctor Gillespie, during the years named. We think it sufficiently appears from the whole of the con [259] tract for each year, that within the meaning and intention of the parties, the accounts were to be the property of the plaintiff for the specific purposes named, by virtue of the transfer thereof alone, and not under a sale or mortgage of the Doctor’s professional skill and services, which would be an anomaly, and a conclusion not justified by the phraseology used. Most, if not all the cases cited by counsel to uphold the transfer, show the assignment of a hope or expectation of means founded on a right in esse, which might be perfected by the acquirement of a title infuturo. Such cases are analagous to the spei emptio — the draught of the fisherman’s net, which, by the law, may be assigned.— Gardner v. Hoeg, 18 Pick. 170; Robinson v. Mauldin, 11 Ala. 977, and cases there cited. We do not consider the question as to what are the respective rights and liabilities as between Doctor Gillespie and the plaintiff below, under their several contracts, it not being necessary to a decision of this case. As to the cross-appeal: Under § 2240 of the Code, mutual debts, subsisting between the parties at the time of suit brought, may be set off, one against the other, by the defendant, “whether the legal title be in the defendant or not.” Conceding that a judgment is not so assignable as to enable the assigned to sue on it in his own name, (Burwell v. Magee, 9 Ala. 433); and that actions on judgments “in the names of the parties really interested,” are not provided for by § 2129 of the Code, still, under § 2240, a transferred judgment may be the subject of a set-off in the hands of the owner, whether he have the legal title or not, for such a judgment is a “debt” against the defendant therein. The phraseology of this section forbids, in our opinion,. the attainment of any other conclusion; and its effect is, to overturn the previously settled doctrine of this court, that the defendant cannot set off to the plaintiff’s action, a demand which he is not entitled to sue on in his own name. Under the circumstances disclosed by the evidence of Ryan, it was a question for the jury as to whether the ownership of the judgment offered as a set-off, was in the defendant or not; and. the court instructed the jury, “that if they believed said judgment was the property of the de [260] fendant by assignment, that the same was a legal set-off against plaintiff’s action, so far as it went.” In this, there was no error. A portion of the plaintiff’s demand, as the record shows, had been legally transferred to him by Doctor Gillespie, against which the set off might operate. There was no error in the ruling of the court in reference to the statute of limitations, as applicable to the account for the year 1857. — Todd v. Todd, 15 Ala. 743. It results from what we have said, that in the case of the appeal by Skipper against Stokes, the judgment must be reversed and the cause remanded. But the judgment, as to the questions raised on the cross-appeal, Stokes v. Skipper, is affirmed.