Stott v. Franey

Strahan, C. J. — Upon the argument of this cause several objections were made to the plaintiff’s right to maintain this suit, which will be separately noticed so far as may be necessary to a proper disposition of this cause. (1) It is first claimed by the appellant that this suit cannot be maintained for the reason its object is purely legal — that is, to recover the possession of the warrants in controversy; but this objection overlooks one element in the plaintiff’s case. At the time of the assignment of the warrants they were not in existence, and such assignments therefore could not create a strictly legal title. At most it could only create an equity; that is, a right or interest over which courts of equity have been accustomed to exercise jurisdiction, and in proper cases to protect and make effectual according to the intention and rights of the parties. The principle is stated in 1 Pom. Eq. Jur. §168, as follows: * * * “The assignee of an expectancy, possibility or contingency acquired at once a present equitable right over the future proceeds of the expectancy, possibility or contingency, which was of such a certain and fixed nature that it was sure to ripen into an ordinary equitable property right over those proceeds as soon as they came into existence by a transformation of the possibility or contingency into an interest in possession. There was an equitable ownership or property in abeyance, so to speak, which finally changed into an absolute property upon the happening of the future event. Equity permitted the creation and transfer of such an ownership.” After stating the effect of modern legislation upon this rule, the learned author continues: “Whatever may be the effect of these statutes in abridging or rather in removing occasion for the jurisdiction of equity, it is plain that the jurisdiction must still exist in the cases where a thing in action or demand, purely equitable in its nature, is assigned, and where the assignment itself is equitable, that is, does not operate as an assignment at law, and where any species of possibility or [415] expectancy not within the scope of the statutes is transferred.” And 2 Am. Law Reg. U. S. 527, recognizes this rule of law. This ancient head of equity jurisdiction is not destroyed by any statute that I am aware of, and must therefore still exist, and I think the case made by the plaintiff falls precisely within it. The fact that the plaintiff sought to enjoin the action at law in no way impairs the jurisdiction of equity. It is manifest that the complaint, or that part of it which seeks to lay a foundation for an injunction is wanting in fullness and particularity of statement, but as we have seen the complaint would still be sufficient on the other ground suggested if all relating to the injunction were stricken out. (2) At the time the plaintiff took the assignments of these warrants he was president of the common council of the city of East Portland, and it is claimed that by reason of a particular provision of the charter of the city, he could acquire no title to such warrants. The provision is as follows: “ No member of the common council or any officer of the city shall be interested in any contract or job the expenses of which are paid out of the city treasury.” (Laws, 1885, 314.) This is a wise and proper provision, and if we could see that the assignment of these warrants to the plaintiff made him interested in the job, within the meaning of this prohibition, it would be our plain duty to turn him out of court without any kind of redress. But here the evidence shows that the contract was completely executed before the assignment. All the contractors were to do had been performed, and what the plaintiff did was to take an assignment which entitled him to receive Woods’ part of the warrants. This fact does not bring the plaintiff within the purpose of this inhibition or within the letter of the statute. (3) The defendant Franey does not claim to own these warrants, but his contention is that the contract being joint, Woods bought lumber for side and cross-walks, and is still indebted therefor, and that a claim is being made against him for payment, and that Woods’ creditor seeks to charge him as a partner. Woods and Franey not being partners, [416] Woods could do no act that would charge Franey as a partner or in any manner render him liable on Woods’ account, without his own acquiescence or consent, and the fact that some person may set up a claim against Franey, which, so far as appears, is without foundation, would furnish no reason for taking these warrants, for which the plaintiff and Hall Brothers have paid a full consideration, and turn them over to Franey to indemnify him against such a possibility. We think the decree of the court below is right, and the same is affirmed.