Brindze v. Atlantic City Policemen's Beneficial Ass'n

Leaii'ing, Y. C. The assignment of the first $2,100 of the revenues to be received under the contract was an assignment of money to be earned in the future by the assignor. This court has repeatedly recognized and enforced equitable assignments of this nature. In Bank of Harlem v. Bayonne, 48 N. J. Ecq. (3 Dick.) 246, 252, it is said: “While, properly speaking, an assignment cannot be made of a subject which does not exist, such as a fund to become due on the future performance of a subsisting contract, yet equit3r, on the possible debt ripening into an enforceable specific money liability, treats the agreement as an assignment pro tanlo of the fund, and, by force thereof, vests the equitable title to the money in the assignee. * * * On notice being given to the debtor, and the sums being earned under the contract, the debtor becomes trustee or gucm-trustee for the assignee as to the amount assigned, subject to existing equities and valid prior charges thereon. * * * From this it follows that neither .payments to nor a release or discharge by the assignor, after notice of the assignment, can affect the rights of the assignee against the debtor.” As notice of the assignment had been given to the beneficial association not only prior to the time the money in question was applied to the payment of wages, but also prior to the time that the beneficial association obligated itself to pay the wages, the controlling question in this case is whether under the contract [408] between the amusement company and the beneficial association the money now in question had been earned by the amusement company at the time it was used by the beneficial association to pay the wages of performers. If, at that time, the-money now in question had been so earned the equitable title to it, to the amount of complainant’s claim, became vested in complainant as assignee, and defendant beneficial association could not thereafter lawfully use it for any purpose other than to pay it to complainant. If, after the money became payable under the terms of the contract, the beneficial association, with notice of the assignment, saw fit to assume obligations which the contract did not impose on it, the burden of such obligation cannot be charged against the assignee. See North Bergen v. Eager, 41 N. J. Law (12 Vr.) 184 The contract provided that the amusement company should not draw out of the bank any of the money until their show should be on the ground. All of the proceeds arising from the advance sale of tickets and all other sources were, by the terms of the contract, required to be in the bank at that time. The stipulation was, in effect, a stipulation that the amusement company could draw its share of tire proceeds when the show should be on the ground. Under that stipulation the money at that time became payable to the amusement company, and, as already stated, by reason of the assignment referred to, the equitable title to the amount assigned became vested in complainant. It becomes necessary, therefore, to ascertain whether the circus was “on the ground” within the meaning of the contract, before the time when the beneficial association applied the money in question to the payment of wages. It is contended that the show was not on the ground within the spirit of the contract until it was there with all matters arranged and provided for which were essential to a proper performance; that, in consequence, when the actors refused to perform at the beginning of the first performance for the reason that they were not secure in their wages, it was demonstrated that a show had not at that time been placed on the ground in conformity to the requirements of the contract. I am satisfied that under the evidence in this case that view cannot be properly adopted. Two witnesses of extended experience in the business of supplying [409] shows of this nature have testified that the expression "show on the ground” has a well-recognized technical meaning in transactions of this class; that by reason of the fact that great expense is necessary to assemble a show at a given locality where a performance is to be had, it is a necessity and uniform custom of persons in the business of supplying shows to require the use of the money received from advance sales of tickets and concessions as soon as a show arrives at the locality agreed upon, and to that end the expression "show on the ground” is uniformly understood to refer to that event. That, I think, is the meaning of the expression as it is used in the present contract. The show in all its parts arrived at Atlantic City early in the week pursuant to the requirements of the contract, and was then ready to perform. By reason of a severe storm no performance could be given until the following Friday, and that delay, which was through no fault of the amusement company, occasioned all the trouble which followed. Upon the arrival of the complete paraphernalia of the show at the show grounds and the actors at their lodgings ready to perform when called upon, the money then on hand was, in my judgment, earned by and payable to the amusement company, and at that time the- equitable title to the money due to complainant as assignee vested in him under his assignment; as the beneficial association at that time had notice of the assignment they could not thereafter deprive the assignee of his right to receive his money. The assignment was made to complainant as collateral security, but the amount due to complainant from his assignor has been proven to be an amount in excess of the amount which defendant will be required to pay. Under these circumstances the assignment must be treated exactly the same as though it had not been by way of collateral security. Todd v. Meding, 56 N. J. Eq. (11. Dick.) 83. It is also urged that defendant beneficial association was without power to make the contract. I think the contract was within its powers and was made by its authority. Complainant is entitled to a decree directing defendant to pay to him $348.30 now under its control, and also to pay to complainant, in addition thereto, $1,516.57 as the amount wrongfully applied.