1 Barb. 454 | N.Y. Sup. Ct. | 1847
I am inclined to think the plaintiff’s security upon the vessel is to be regarded as a bottomry bond, and not a mortgage. But in the view I have taken of the questions involved in this case, it is not necessary to decide whether it was the one or the other. It is enough that there was a debt due from Phillips to the plaintiff, for which he held security Upon the vessel. The insurance, though in the name of Gale, was for the benefit of Phillips. Though by the terms of the policy the loss, if any, was payable to Gale, these words merely constituted him the attorney of Phillips, or such other person as he should appoint, to receive the moneys payable upon the policy, in case of a loss. Phillips, then, is to he regarded as the party insured; with full power to transfer his interest in the policy as' he should see fit. The question, upon the decision of which this case must depend, is whether he has in fact made such a transfer to the plaintiff. If he has, then the defendants New-bold & Cruft are liable to the plaintiff for the balance of the moneys received by them upon the settlement with the insurance company, after deducting their expenses and commissions. On the other hand, if, when those moneys were received, no valid
It is true that no particular form of words is necessary to constitute an equitable assignment. But there must at least be evidence of an intention to appropriate the fund. If Phillips, instead of writing to the plaintiff that Gale was to hold the insurance money subject to his order, had in fact given him an order upon Gale for such money, it might, perhaps, have had the effect to give him a specific lien upon the fund; though I thin It even that would not have been sufficient. Such an order would have contained what is not proved in this case, a direc
The case of Clayton v. Fawcett, (2 Leigh's Va. Rep. 19,) cited with approbation, by Senator Dickinson, in delivering the opinion of the court in the case of Rogers v. Hosack's Executors, is a stronger case than that under consideration, in favor of sustaining the doctrine of equitable appropriation as applicable to.such a case. There Fawcett had placed a bond in the hands of his agent for collection ; and being indebted to Clayton, he gave him a letter addressed to his agent, directing him to pay the money to Clayton when collected, if he should not happen to be present. Fawcett having died, the question arose between his representatives and Clayton, whether this letter to the agent of Fawcett amounted to an equitable transfer of the money. The chancellor held that no such construction could be given to it, and his decision was affirmed by the court of appeals. In that case, the letter to the agent of Fawcett was but an authority to him to pay the money to Clayton; and not being accompanied by an assignment, and not having been executed at the time of the death of Fawcett, such death operated as a revocation of the authority ; and the money in the hands of the agent became a part of Fawcett’s estate. The distinc- . tion between those cases in which the transaction has been held to constitute an equitable assignment, and those in which • it has been held not to constitute such an assignment, seems to depend upon the question whether the party having the control of the fund intended in fact to make an absolute appropriation of it, or whether he intended himself to retain the control of it.
In any view I have been able to take of this case, whether the plaintiff’s security upon the vessel is to be regarded, as a bottomry bond or a mortgage—or whether the declarations of Phillips, by his letter on the 26th of February, and to the witness De Peyster, are competent evidence against Newbold & Cruft, or not—or whether or not he gave to his agent such instructions as are mentioned in the letter of the 26th of February, I cannot regard the plaintiff as having obtained a specific lien upon the proceeds of the policy. The bill must therefore bé dismissed as against Newbold & Cruft, with costs.