Oakley v. Hibbard

Irvin, J. This cause comes up from the county of Milwaukee, on an appeal from the final decree of the district court, made in favor of the complainants in February last, when it was heard upon bill and answer. By the bill of the complainants, it appears that “ one Bostwick O’Connor, then doing business as a merchant at Troy, in the county of Walworth, executed and delivered to Hugh L. Smith and J. Clark Smith his certain promissory note, bearing date on that day, and thereby promised to pay $600, with interest from the date of said note, to them, the said Hugh and J. Clark Smith, by the name of Smith and Brother, or to their order, at the office of the Wisconsin Fire and Marine Insurance Company, at Milwaukee, eighteen months after the date of said note,” “and the said Smith and Brother afterward, and before the said note became due, indorsed and delivered the same to the complainants; that the said O’ Connor, on the 1st of March, 1844, made an assignment of his merchandise, notes, etc., to William B. Hibbard, the defendant, for the purpose of paying off the debts therein mentioned and in the order directed, and that the said Hibbard took upon himself the execution of the trust, and, [676] after paying off a part of the debts of the said O’ Connor, he became the purchaser of the balance of the trust fund, from said O’Connor, leaving the debt due to the complainants unpaid. The defendant, by his answer, which is considered responsive to the bill, admits the creation of the trust, and that he entered upon the execution of it, took into his possession the effects mentioned therein, and that after paying a part of the debts (those of preference), the said O’Connor revoked the assignment and sold to him the remainder of the property, notes, etc., that were so assigned. The answer also states that the complainants never had notice of the assignment; nor does it appear (whether they had notice or not) that they ever took any steps to signify their acceptance of the trust and the provisions therein contained. It is nowhere alleged that O’Connor was then in failing circumstances, or was then,, or at any time since, unable to pay all of his debts. The assignment appears to have been entirely voluntary on the part of O’Connor, and without consideration on the part of Hibbard, and must be construed, under such circumstances, to be a mode or convenience adopted by O’Connor for the settlement and winding up of his business. It is a principle well enough established, that if the creditors of O’ Connor who were included in the assignment had done any thing by which they Signified their acceptance of the provisions of the assignment, Hibbard would .have been liable to them ; but, as it is asserted by Hibbard, that no notice of the assignment was ever given to them (and it not otherwise apj>earing to the court), the only question for the court to decide is, whether O’Connor could revoke the assignment, and thereby discharge Hibbard from it; for, if he could, then, when it was revoked, Hibbard could as well purchase from him as any other person could. That he could revoke the assignment abundantly appears from the following authorities: Story’s Eq., § 1036, p. 358; § 972, last clause; § 1045, p. 379; Williams v. Everett, 14 East, 582; Tiernan v. Jackson, 5 Pet. 580; and, when we take into [677] consideration the fact that, by the terms of the assignment, Hibbard was to account to O’Connor for the trust fund, the case remains without a doubt. A majority of the court are therefore of the opinion that the complainant is not entitled to the relief sought, and that his bill must be dismissed with costs.