Canty v. Latterner

Dickinson, J. The demurrer rests alone upon the ground that the complaint does not state facts sufficient to constitute a cause of action. It is urged in support of the demurrer that this action cannot be sustained, because it is in its nature equitable, while an adequate remedy of a legal kind is open to the plaintiff. This is no sufficient ground for a demurrer. The action cannot be dismissed, nor is the complaint demurrable, if facts are alleged which constitute a cause of action of either a legal or equitable nature. Upon such facts, admitted, as by demurrer, or proved upon trial, the court, which exercises both legal and equitable jurisdiction, will award the proper relief. Connor v. Board of Education, 10 Minn. 352, (439;) Metzner v. Baldwin, 11 Minn. 92, (150;) First Div., etc., R. Co. v. Rice, 25 Minn. 278; Wright v. Wright, 54 N. Y. 437; Leonard v. Rogan, 20 Wis. 540; White v. Lyons, 42 Cal. 279. The parties were not restrained by any existing rule of law from agreeing upon the measure and mode of the plaintiff’s compensation. The contract was authorized by statute, (Gen. St. 1878, c. 67, § 1,) and was not champertous nor illegal. No other substantial reason is suggested as opposing a right on the part of the plaintiff to recovery, either from the specific fund in court or from the defendant Latterner, personally, and, he being entitled to one or the other of these remedies, the demurrer cannot be sustained. [242] We will consider some other questions relating to the construction and effect of the written contract recited in the complaint which were argued before us, and which are claimed to have been passed upon in the decision of the court below. Did the contract constitute an assignment of the fund in question entitling the plaintiff to a specific recovery of it ? The doctrine has generally prevailed, at least in courts of law, that an assignment or order for the payment of a part only of an entire chose in action is not effective to give a right of recovery against the debtor, in the absence of assent on his part to the transaction. Since choses in action became legally assignable, the only reason remaining for the rule is that which’ regards the rights of the debtor, namely, that he may not without his consent be subjected to several actions, or compelled to respond to several demands, his obligation being originally single and entire. The rule extends not beyond the reason for it; and, as betw'een the parties to the transaction, an assignment of a part of an entire demand is binding and enforceable. In this case the railroad company had discharged its obligation by paying the money into court pursuant to statute, and only the parties to the contract are interested in the contract or its enforcement. They are bound by it. Upon its face the contract is to be construed as an equitable assignment of $100 of the amount there referred to as due to the respondent from the railroad company. It expressed not merely an obligation to pay upon the contingency named, nor merely to pay out of money to be collected by the respondent, but that the plaintiff should receive, this money from the railroad company, out of the amount owing by it to the respondent. It was in effect a constructive appropriation, in favor of the plaintiff, of so much of the money payable to the respondent, subject only to the condition named, and was hence operative as an assignment, although not an assignment in form. Crone v. Braun, 23 Minn. 239; 2 Lead. Cas. in Eq. (White & Tudor’s Notes,) 1644. A distinction exists between such a case and an agreement that the promisor will pay out of a particular fund. In the latter case the agreement contemplates a continued right in the promisor to recover •and to hold the money, and that payment shall be made only through him. [243] The fact that, by the terms of the contract, the plaintiff’s right to receive the money was contingent upon a successful termination of the action, does not forbid that the contract be treated and enforced as an assignment, since the specified event has occurred, and the plaintiff’s right thereby become absolute. The fact that the railroad company had, before the making of the contract, deposited the money in court, to be paid to the person entitled to receive it, as it might do under the statute, and thereby discharge itself from further liability, and that the instrument was framed in ignorance of this fact, does not change the legal effect of 'the written agreement as an equitable assignment of the fund, nor render necessary a reformation of the contract, in order that it may •express the real intention of the parties. The right of the plaintiff in respect to the fund in question may be stated in the two propositions, that, under the contract and by a construction of its terms, he was entitled (the condition being fulfilled) to receive from the railroad ■company the money owing to the respondent, and that that money so owing and the fund in court are identical., The statute which forbids the alienation of the homestead of the husband without the consent of the wife, does not affect his right to dispose of the money awarded to him as compensation for a taking of any part of the land under the law of. eminent domain. Order reversed.