Wescott v. Potter

[274] The opinion of th’e court was delivered by Peck, J. The question is, whether the county court erred in deciding that the fund in question belongs to the claimant, and in holding the trustee not chargeable. The writ in this case was prayed out and served October 2d, 1861. At that time the principal debtor was carrying on the farm, of Merrick, the deceased, upon shares, under a written lease or contract, which is attached to the commissioner’s report, by which the principal debtor was to carry on the farm from March 1st, 18G1, to March 1st, 18G2. Among the stipulations in the lease is one by which the principal debtor is to board Merrick, the deceased, and Esther Merrick, at three dollars per week, for such time during the lease as they shall choose to board with him. Most of the indebtedness to the principal debtor, it would seem from the account adjusted and allowed by the commissioners on the estate of Merrick, accrued for such board. If the written assignment, executed by the principal debtor September 20th, 1861, to the claimaút, and of which Merrick was duly notified in writing September 30th, 1861, before the service of the writ upon the alleged trustee, is valid and operative to transfer the fund or indebtedness in question, it is not claimed that the trustee is chargeable. The commissioners on the estate of Merrick, who died in 1861, have allowed a balance against the estate in favor of the principal debtor growing out of the farm contract, including the claim for the board, above stated. It is insisted on the part of the plaintiff that the assignment is inoperative, for the reason that there was no delivery of possession to this claimant of the farm, or personal property upon it, or of the farm contract between Merrick and the principal debtor. In order to give validity to the assignment of the debt in question it was not necessary for the assignee to take possession of the farm or personal property, as it does not appear that, in the allowance by the commissioners on Merrick’s estate, anything was embraced based on any interest the principal debtor had in the property. A much less sum was allowed than was presented, and the sum allowed may have all been made up of the item for board; or if some other items were allowed they were not on account of any interest of the principal debtor in any property. Nor was it necessary to deliver the written contract [275] relating to the carrying on the farm, which remained at the town clerk’s office where the parties to it had placed it for safe keeping, obviously fbr the inspection and benefit of both parties. It was signed by both, and both had a right to have it remain there for the mutual benefit of both. The whole contract was not assigned, but only the indebtedness of Merrick under it. Nor does it appear that in the allowance by the commissioners on Merrick’s estate, (which constitutes the debt in question,) .anything was allowed except what is embraced in the assignment to the plaintiff. Although this balance was not ascertained at the date of the assignment, we think the assignment, with notice to Merrick, is operative to protect the debt against a subsequent attachment by trustee process. Whittle v. Skinner, 23 Vt. 531, is relied on by the ’plaintiff’s counsel to show that the assignment is void. That was a case where the evidence, as it was claimed, tended to show a verbal assignment of a balance of an unsettled account between partners, claimed by one partner to be due him from his late partner. The court held that under the circumstances of that case it was an executory agreement to assign, but not intended as an assignment in presentí. Redeield, J., says, “ it is evident from what subsequently passed between the parties, that they regarded the first agreement to assign as merely inchoate, and not as vesting any present interest in the unliquidated balance of the partnership dealings.” The court, in that case, attach importance to the fact that the assignment was verbal and no delivery either actual or symbolical. But the same Judge, speaking of a verbal assignment, says, in that case, that “ where the assignment of an account is made, it has been held sufficientJp deliver the bill;” and adds, and when the assignment is in writing the delivery of the writing would, very likely, be sufficient.” In the case at bar the assignment was in writing and the writing delivered. There is a remark of Redeield, J., in that case, and incorporated into the head note, to the effect that an unliquidated balance of an account is not assignable; but which was not necessary to the decision of that case. This dictum, we think, is not sustained by the authorities; nor does, there seem to be any sufficient reason, either upon principle, policy or convenience, to support it. To adopt such a rule would be [276] Very embarrassing in eases of general assignments, as well as in special transactions of this character. The debtor is not by the assignment deprived of any defence in liquidating and ‘ascertaining the balance due. In the leading case of Israel v. Douglass, 1 Hen. Bl. 239, the plaintiff recovered upon the ground that the transaction, though not so in form, was, in effect, an assignment to the plaintiff of the debt which the defendant owed Delavalle on account, and the account was not only open and unadjusted, but there was a disagreement between Delavalle and the defendant as to the balance due, and the defendant’s promise was indefinite in amount; a promise to pay whatever balance was due. All the judges concurred in a judgment for the plaintiff in that ease. Wilson, J., however, doubted whether the plaintiff could recover upon the count for money had and received, for the reason that he thought in order to maintain that count, it ought to appear that the original indebtedness from the defendant to Delavalle was for money had and received. This point, on which Wilson, J., doubted, is the only point on which that case, so far as I recollect, has ever been questioned. Crowfoot et als. v. Gurney, 9 Bing. 363, (23 E. C. L. 309,) was the case of an assignment of an unliquidated claim which remained to be adjusted, and the court held the assignment valid ; although the point was made in argument, that the debt being thus uncertain in amount was not assignable. It is true, in these cases, the debtor had assented to the assignment, and promised to pay the unliquidated balance, when ascertained, to the assignee; but that is necessary only to enable the assignee to sue in his own name. His right is the same without such- assent, except in the mode of remedy. In Tibbetts v. George, 5 Ad. & Ellis 118, (31 E. C. L. 543,) it was held that all that was necessary to perfect the assignment of a debt, was notice to the debtor of the assignment, without the assent or promise of the debtor. In this case, too, the debt when assigned was uncertain in amount, being an undeclared dividend in expectation out of the estate of a bankrupt. In Crocker v. Whitney, 10 Mass. 316, where a supercargo of a ship about to make a voyage at sea, at the instance of a seaman who had shipped for the voyage, promised a creditor of the seaman to pay the debt of the seaman to [277] such creditor, if there should be so much due to ihe seaman on the return of the ship; it was held that it amounted to an assignment of the seaman’s claim, and was a good consideration for the promise of the supercargo. Jackson, J., says: It is no objection to such an assignment that it is- of an unliquidated balance of account. If the defendant promises to pay what shall appear to be due from him, he is liable for the amount when ascertained. Nor does it make any difference, if, instead of a debt now due, the assignment is of money which is expected to become due at a future day to .the assignor.” The case of Whittle v. Shinner, must rest on the other grounds assigned in the opinion for that decision, and not on the fact that the demand was not assignable by reason of being unliquidated. The •demand in the case at bar was assignable, and the assignment and notice give the claimant priority over this trustee process. Judgment affirmed.