Comfort v. Creelman , 52 Minn. 280 ( 1893 )

Dickinson, J.

The plaintiff is an attorney at law. Prior to August, 1890, he rendered professional services for a corporation, the Lemm, Fawcett & Johnson Manufacturing Company, for which that company became indebted to him. The company presented to him for collection and enforcement a claim of indebtedness from one Peterson, with an asserted right of mechanic’s lien as security therefor. By agreement with the corporation, the plaintiff was to and did have a lien on this-claim and cause of action to secure the payment of all that might be-owing to him for professional services. This being the situation, on the 1st of August the corporation made an assignment to the defendant Creelman of all its property, including the Peterson claim, in trust for the benefit of certain of its creditors other than the plaintiff. In the same month the defendant, as such assignee, commenced an action against Peterson and others to enforce the mechanic’s lien and collect the debt, intending to use the proceeds for the payment of those creditors for whose benefit the assignment was made. The plaintiff then commenced this action to enjoin such proceedings on the part of the defendant. Subsequently, and during the pendency of both actions, this defendant and certain creditors of the corporation assigned to one Ford and others all their right, title, and interest in and to the claim and lien against Peterson; the assignees, Ford and others, having notice and knowledge of this plaintiff’s asserted right of lien upon the same, and from such lien the defendant undertook to save his assignees harmless. Then the plaintiff filed a supplemental complaint in this action, alleging the sale and assignment of the Peterson claim by the defendant as being a conversiofi of the property, and for such conversion a recovery of damages is sought.

From the foregoing statement of the case it will be seen that the-right of the plaintiff to recover damages depends upon the proposition that the sale and assignment of the Peterson claim to Ford constituted, as to the plaintiff, a conversion. But this proposition cannot be maintained. The claim against Peterson — his indebtedness to the corporation — was not the property of the plaintiff. He only had a lien upon it, which was not divested nor impaired by the transfer of the cause of action to Ford, who took the same subject to-the plaintiff’s lien, of which he had knowledge. If the property had been a tangible chattel, on which the plaintiff had a lien, as by chattel mortgage, instead of being a chose in action, it would hardly have-been claimed that the sale of the chattel, subject to the lien, to a purchaser with notice thereof, would constitute a conversion if the terms of the mortgage were not such as to forbid a sale. The lien would still attach to the property in the hands of the purchaser. This case is in principle not different from that supposed. The assignment, under the circumstances stated, did not constitute a conversion. The assignment only purported to transfer the right, title, and interest of the assignors. It transferred no greater interest than the assignors had. If the chose in action before the assignment was subject to the plaintiff’s lien, it was equally so thereafter. The assignment was consistent with the continued existence of any lien which the plaintiff might have. It neither deprived him of any right, nor purported to do so. Although the instrument recited the fact that the plaintiff claimed a lien, and embraced an undertaking to indemnify the assignees therefrom, that did not impart to the transaction the quality of a conversion. It did not enlarge the scope of the assignment as a transfer only of the “right, title, and interest" of the assignors, which is the language of the assignment.

Such being our conclusion upon this point, the other questions presented in the case are immaterial.

Order and judgment affirmed.

(Opinion published 53 N. W. Rep. 1157.)