Hudson Manufacturing Co. v. Elmendorf , 9 N.J. Eq. 478 ( 1853 )

The Ciiancellob.

The disposition of this motion depends upon the construction of the agreement between Peter Z. Elmendorf and Luther Loomis. If Loomis had authority, as is contended, to collect the money as the attorney of Elmendorf and discharge the decree, then this injunction should be retained until the coming in of the answer of Loomis, and a further investigation of the merits. If it did not authorize Loomis to collect the amount that remained due to Elmendorf, then the injunction should be so modified as to allow Elmendorf to proceed under the decree and collect that amount.

There was due on the decree the sum of six thousand two hundred ahd sixty-three dollars and sixty-eight cents. For and in consideration of the sum of three thousand one hundred and forty-one dollars and twenty-eight cents, the payment of which was acknowledged, and the further sum of three thousand one hundred and twenty-two dollars and forty cents which Loomis agreed to pay in one year, with interest, Elmendorf “ did assign, set over and transfer the said decree, and all the rights, powers and equities appertaining to the same, as fully as they are possessed by the said Elmendorf, to the said Loomis, to have and to hold the same to his heirs and assigns forever, with authority to collect the same in the name of the said Elmendorf, or otherwise, as the said Loomis shall deem expedient.”

If the assignment and agreement had stopped here, Loomis would have been authorized to enforce the payment of the whole amount due on the decree against the defendants. Of course it would have been authority for the defendants to settle with Loomis. But, by the further terms of the agreement, the authority conferred upon Loomis was limited. It was further agreed between the parties “that for the purpose of securing the payment ” of the amount remaining unpaid to Elmendorf, which Loomis had agreed to pay in one year, Elmendorf should hold a lien upon the decree “ as fully and as perfectly as though the same had not been assigned.” If this was not a limit to Loomis’ authority, and a prohibition against his collecting that amount, how did Elmendorf hold a lien for it upon the decree “ as fully and as perfectly as though ” the assignment had not been made ? Elmendorf had Loomis’ promise and agreement to pay the amount; but this was a further agreement between them that Loomis’ personal responsibility was not to be relied upon. And yet, if Loomis could discharge the lien, what security was the lien to Elmendorf? If a payment to Loomis was payment to Elmendorf, what did the agreement avail that he was to retain the lien ?

The Hudson Manufacturing Company had no authority, by virtue of the assignment, to pay to Loomis the amount due to Elmendorf. They claim relief on the ground that they have made payment to Loomis. This they were not justified in doing.

The injunction must be modified. Elmendorf must be permitted to proceed on his decree. The sheriff must pay to him the sum of three thousand one hundred and twenty dollars and forty cents, with interest from the 20th of April, 18£jl, and bring the balance into court to abide its further order.