Manufacturer's Bank v. Osgood , 12 Me. 117 ( 1835 )

At a subsequent term, the opinion of the Court was delivered by

Parris J.

Neither the Messrs. Shepleys or Mr. Fairfield, has, by virtue of the assignment, any greater interest in the judgment against Elden, than to the amount of their several charges, and claims against Osgood, for services rendered in the action on which that judgment was obtained. They did not become the debtors of Osgood, merely by receiving the deed of assignment; neither did they, upon the payment of the money, become his joint debtors, even if the amount should exceed their respective demands. Although the assignment is, in form, joint, yet the interests of the assignees are several, and either might maintain a separate action to enforce his rights, as readily as if the assignment had been to him alone. Platt on Covenants, 130; 1 Saund. 154; Servante v. James, 10 Barn. & Cresw. 410; Prince v. Shepard, 9 Pick. 185.

The true construction of the instrument is, that so much of the judgment was assigned to the Messrs. Shepley as should be sufficient to pay their demand for professional services, and so much as should be necessary, was, for the like purpose, assigned to Mr. Fairfield, and the balance remained the property of Osgood, not assigned to any one, and for which he would have a right of action against either Shepley or Fairfield, to whichever it might have been paid. But, inasmuch as they were not partners, and had entered into no joint engagements or covenants, it is not perceived that Osgood could maintain an action against them jointly for the balance remaining in the hands of either.

The money was, in fact, paid over to Fairfield by Elden. Could Osgood immediately thereafter have maintained an action, for money had arid received, against the Messrs. Shepley 1 They had received none of the money, not even that to which they were entitled for their professional services. They had, in no way, become accountable to Osgood for Fairfield’s acts, or for any balance that might remain in his hands, and we do not see how they could be considered as Osgood’s debtors.

The cases cited by the counsel in defence, are all distinguishable from this in important particulars. The case of Guild v. Holbrook, was an assignment by an insolvent debtor for the purpose of paying the assignees and other creditors, and the property loas received by the assignees jointly. The court say, “that the possession of one under a joint title, is the possession of all holding under the same title. It must generally happen that one of several joint owners of personal property must hold the custody for himself and co-tenants, unless they happen to be partners.” These observations can have no application to the case under consideration, for Shepley and Fairfield were not owners of the balance remaining after paying their several demands. If they were, then clearly this process cannot be maintained, for it is only upon the goods, effects, and credits of Osgood, that it can operate.

In Jewett v. Bacon, the court, in the passage relied upon by the counsel, are speaking of a joint debt or contract against two or more; and they say, that in such a case, all the parties liable by law to discharge the contract, should be summoned. So in Kidder v. Packard, the court say, “ debtors, who are co-partners here, must all bo summoned;” and in the case of Hathaway v. Russell, a part only of joint contractors, with the principal defendant, were summoned as trustees. If, at the time of the service of the writ, in the case at bar, the Messrs. Shepley had been answerable to Osgood, for the money actually in Fairfield’s hands, then the authorities relied upon would be applicable, but as they were not in any manner indebted or answerable, it was not necessary that they should be summoned as trustees.

It is further contended, that if they are not entitled to come in and disclose as trustees, they are entitled to have retained in Mr. Fail-field’s hands, an amount, sufficient not only to satisfy their demands for professional services covered by the assignment, but also such other demands as they may have against Osgood, and of which they could avail themselves by way of set-off in a suit by him against them.

If this money was so situated that Osgood could not reach it, except by a suit against the Messrs. Shepley, the position would be entitled to consideration ; as to permit Osgood’s creditors to reach the money, through the trustee process, free from Shepley’s right of off-set, when Osgood, himself, could not do it, would be clearly improper. But the case is not thus situated. Whatever claims Osgood may have for the balance, after paying the sums included in the assignment, they are to be enforced against Fair-field. He alone has received so much of Osgood’s money, and he alone is accountable for it. It follows, therefore, that Osgood could call for this balance, without being subjected to off-set on account of any demands of the Messrs. Shepley, other than those specially covered by the assignment.

We think that Mr. Fairfield has a right to retain sufficient to satisfy all his demands against Osgood, and also sufficient to satisfy the Messrs. Shepley, for their services rendered in the action against Elden, as provided for in the assignment, and that for the balance, he must be adjudged trustee.