Osborn v. Thomas , 46 Barb. 514 ( 1866 )

By the Court, Johnson, J.

The conclusions of law of the referee upon the facts found by him, are clearly correct. The plaintiff, as assignee, had no claim, legal or equitable, upon the $712.50 to be paid upon the completion and delivery of the boat according to the terms of the contract, or any part thereof, until the expenses of such completion had first been paid and satisfied. The defendant was the assignee of the $2000 to be paid in notes, as specified in the contract, and had therefore a deep and direct interest in having the boat completed for the protection and benefit of his interest in the contract. The $712.50 to be paid on the delivery of the boat, was assigned to the workmen, or so much thereof as should be necessary to satisfy their demands for labor performed in building such boat, up to the time of the assignment to them. The residue, if any, was to belong to the assignors.

These assignments were both made before the assignment to the plaintiff, and of course, as general assignee for the benefit of creditors, he took subject to the prior assignments. At the time of these several assignments the contract for the building of the boat had not been performed, so as to entitle the assignors to any compensation whatever under the contract. The boat was yet to be finished, and the com-: pensation fully earned, and this necessarily required further labor and expenditure. The plaintiff was requested to go on and complete the job, so that the amount stipulated to be paid might be realized. But this he very properly refused to do, upon the ground that it would require a much larger expenditure to complete the boat, so that payment might be demanded, than his residuary interest' could possibly amount to. In this he was clearly right. The workmen had suspended work and refused to go on and complete the boat. Under these circumstances it became absolutely necessary for the defendant to assume the burden of completing the boat, in order to save his interest thus assigned. This he did, and in doing so necessarily expended, as the referee finds, $1636.23. By this means, and not otherwise, the amount stipulated by the contract to be paid upon the completion and delivery of the boat was earned and became due and payable. The amount due the workmen at the time of the assignment to them, was $555, which the defendant assumed and paid, taking an assignment from them of their interest in the contract. It will thus be seen that had the boat been completed and delivered, or ready for delivery, at the time of the assignment to the plaintiff, his interest in the contract, or in the amount to be paid, could not have exceeded $156.50. The defendant’s interest by the assignment was $2000, and he paid the workmen $555, the amount of their interest, making his whole claim $2555. In order to realize any portion of this he was obliged to lay out and expend the sum of $1636.23, leaving the amount realized on the entire claim, over and above the expenses necessary to secure any thing, only $918.77, and of this considerably over one half had been actually paid out to workmen, for labor, before the assignment. On his original claim of $2000, he only realized, after paying charges and expenses, $363.77. Under such circumstances, the claim of the plaintiff to any portion of this fund paid for the boat, is simply preposterous. The judgment is clearly right, and should be affirmed.

[Monboe General Teem, September 8, 1866.

WeUes, H. D. Smith, and Johnson, Justices.]