Jermyn v. Moffitt ( 1874 )

The opinion of the court was delivered, May 11th 1874, by

Mercur, J.

The first assignment of error is to the answer of the court on an abstract proposition'submitted by the plaintiff' in error. In view of the broad and general terms in which the point was presented, we see no error in the answer. In some cases a valid assignment may be made of moneys thereafter to be made, or of grain thereafter to be grown: Grantham v. Hawley, Hobart 132; Petch v. Tutin, 15 M. & W. 109; or of the future earnings of a railroad: Bittenbender v. S. & E. Railroad Co., 4 Wright 270. If counsel desire an answer applicable to the evidence in the ease being tried, they should so indicate it in their point submitted.

The second assignment involves the sufficiency of the transfer to give a right of action to Moffitt against Jermyn. Leslie assigned to Moffitt “ five dollars a month of my earnings in the employment of the Delaware & Hudson Canal Co., or with whomsoever I may be employed, until the amount due said Moffitt is paid.” Jermyn’s name is not mentioned in the assignment. It does not appear, that, at the date thereof, Leslie was in his employ, or that any business relations then existed between them.

The court charged substantially, if Moffitt did, within a few months after the assignment was made, hand a copy of it to Jer^ myn, and Leslie continued in his employment thereafter, then Jermin became responsible to Moffitt at the rate of five dollars a month out of wages so earned by Leslie, until the amount due from the latter to Moffitt was paid. The answer wholly excludes from the jury all question in regard to any acceptance by Jermyn, and any express or implied agreement of his, to pay. The court assumes as matter of law, that if Moffitt merely handed a copy of the assignment to Jermyn, and Leslie thereafter continued in his employ, it gave Moffitt aright of action against Jermyn. It is true, where an order is drawn for the whole of a particular fund, it amounts to an equitable assignment of that fund, and after notice to the drawee, it binds the fund in his hands. Where, however, the assignment is of a part only of the fund the law seems to be otherwise. Thus, it was said by Mr. Justice Story, in giving the opinion of the court in Mandeville v. Welch, 5 Wheat. 277, “when tíre order is drawn on a general or a particular fund for a part only, it does not amount to an assignment of that part, or give a lien as against the drawee, unless he consent to the appropriation by an acceptance of the draft; or an obligation .to accept may be fairly implied from the custom of trade or the course of business between the parties, as a part of their contract.” The reasons which he gives are, that a creditor should not be permitted to split up a single cause of action into many actions, without the assent of his debtor, thereby subjecting the latter to embarrassments and responsibilities not contemplated in his original contract. It was held in Gibson v. Clark, 20 Pick. 15, that the assignment of part of a debt will not bind the debtor, either in equity or at law, nor deprive him of the right to pay the whole to the assignor, after notice that a part has been transferred to the assignee. All the decisions relating to this question of assignment are not in entire harmony. We shall not now attempt to reconcile them. We, however, are clearly of the opinion that an assignment like the present one, which professes to transfer a debt to arise for wages not yet earned, against any person by whom the assignor may thereafter be employed, although followed by a subsequent notice of the assignment to such an employer, is insufficient, without acceptance, to make a valid transfer of the debt against the employer. The second assignment of error is sustained.

Judgment reversed, and a venire facias de novo awarded.