Farnsworth v. Jackson , 32 Me. 419 ( 1851 )

Shepley, C. J.

The right of the plaintiffs to recover may depend upon the validity of the assignment, made by Johnson to the defendant. There can be no legal assignment of that, which has no actual or legal existence. There may be a valid assignment of an existing claim to future compensation, not yet earned, and subject to a contingency, whether it ever will be earned. The cases cited and relied upon by the counsel for the plaintiffs are not opposed to this position.

The case of Morrough v. Comyns, 1 Wils. 211, decides, that a captor of a prize-ship might legally assign his share or interest in the prize-money before condemnation. This was afterwards prohibited by statute 20 Geo. 2.

The cases of Flarty v. Odlum, 3 T. R. 681, and of Liddesdale v. Montrose, 4 T. R. 248, decide, that an officer entitled to half pay could not legally assign that pay, which was to become due in future. Not because he had nothing capable of assignment, but because it was against public policy to permit it to be assigned.

In the case of Crocker & ux. v. Whitney, 10 Mass. 316, it is stated in the opinion, “ Nor does it make any difference, if instead . of a debt now due, the assignment is of money, which is expected to become due at a future day to the assignor.”

In the case of Cutts v. Perkins, 12 Mass. 206, it is stated, that the former case was decided on the ground of its being “ money expected to become due at some future time to the assignor, it appearing, that there was an existing contract, upon which the debt might arise.” The last remark exhibits the foundation, upon which such an assignment of a future contingent interest must rest; for without any existing contract to uphold it, there could be no existing interest to assign.

A similar doctrine is asserted in the cases of Gardner v. Hoeg, 18 Pick. 168, and of Mitchell v. Winslow, 2 Story, 630.

It appears from the facts agreed in this case, that “ there was no contract between Johnson and said persons for board for any specified time.” It also appears, that the students had been boarding with Johnson about thee weeks, when the assignment was made of what was then due and of what might become due from them.

Was there then an existing contract between them and Johnson, the future benefit of which might be assigned ? The fair conclusion to be drawn from the agreed statement is, perhaps, that the students verbally agreed with him for board at a certain price per week, but not for any specified time. There would seem then to have been an existing parole contract for board determinable at the pleasure of either party. It is not necessary, that money payable on a contingency, should be payable by virtue of a written contract to make it assignable.

If it be doubtful, whether there was a sufficient contract existing at the time to uphold an assignment of its future benefit, there would seem to be little reason for doubt, that the assignment to the defendant, if defective when it was made, was confirmed and established by the reference made to it in the assignment made to the plaintiffs after the contingency had happened and the money accruing for board had been earned and become due. The assignment made to the plaintiffs was declared to be made “ subject however to any former assignment, that I have made of the demands aforesaid to Leavitt T. Jackson and Ebenezer Swett & Son.”

The debts were then absolutely due, and he could then legally assign them, or nonfirm a former defective title to them.

Plaintiffs nonsuit.