| U.S. Circuit Court for the District of Rhode Island | Nov 15, 1835
The title of the plaintiff is under an assignment made to him by Low & Fenner, dated the 6th of July, 1S29, and erroneously stated in the bill to be on the 4th of July, 1829. That assignment conveys to the plaintiff “All the goods, wares, merchandises, and personal property of every kind, belonging to the said late company of Low & Fenner; and also all notes, book accounts, and debts of every kind due them.” Now the supposed interest of Low & Fenner, under Hazard & Company, in the Lippitt contract, stated in the pleadings, is neither a note, nor a book account, nor a debt due; and consequently, it did not pass to the plaintiff under the assignment, unless it can be comprehended under the words “personal property of every kind.” These words might possibly have been construed to embrace this equitable sub-interest of Low & Fenner in the Lippitt contract, if the words had stood alone. But in the connection in which they stand in the assignment, they are manifestly used to signify visible, tangible property, ejusdem generis as goods, wax-es, and merchandises. For if they were designed to embrace every description of personal property in the broadest sense of the terms, the subsequent clause respecting notes, book accounts, and debts, would not only have been superfluous, but’ impertinent. My opinion, thei-efore, is, that the words personal property are used in the assignment in a restrained sense, and do not embrace the equitable interest asserted by Low & Fenner in the Lip-pitt contract. The plaintiff’s title, thei'efoi'e, wholly fails at the threshold of the cause. The answer of Low & Fenner does not help the case in this respect; for it only admits the assignment, as it stands, and pretends to no other or larger conveyance of their interest, than the terms of the assignment purport to convey. But, although my opinion is thus against the plaintiff on this point, I should be sorry to decide the cause against him solely upon this ground; and I shall, therefore, proceed to the consideration of the other grounds oE objection stated in the argument.
The first question is, whether any assignment was in fact made by Hazard & Co. of an interest in the Lippitt contract to Low & Fenner, as stated in the bill. It is certain, that no assignment was made in writing. The bill itself does not directly and positively set up any written contract of assignment signed by the parties. It is true, that there is an unsigned paper appended to the bill; but it is not referred to in the bill as the very contract; nor does the bill assert, that a written contract was intended, and omitted to be signed by the parties by mistake; nor does it ask relief on that account. The bill is not, then, framed for such an aspect of the case; and if it had been, Hazard & Co. must have been made parties to correct the mistake. The bill, indeed, seems indirectly to rely upon some written contract from Hazard & Co. to Low & Fenner, after the 7th of March, 1S28. for it asserts an agreement to have been “made and executed,” which terms rather lead to the conclusion, that the plaintiff intended to speak of some writing executed. But if this difficulty in the frame of the bill, as founded upon a written contract, can be gotten over, still there remains another difficulty, that there is no proof of any such written agreement, as is averred in the bill, either signed or unsigned. The unsigned written paper annexed to the bill, if it could be construed to import a final executed contract, varies essentially in its terms and provisions from that asserted in the bill. So that the proof totally fails, as well as the allegations, in the bill, if construed to refer to a written contract. If, on the other hand, the bill is to be treated as founded upon a parol contract of assignment, the evidence of what that
I agree, that a contract of this nature might be established by the assent and admission of both the assignors and assignees, by their answers to the bill, if they were parties to it, even though Almy and Lippitt were ignorant of it, and each asserted his ignorance in his answer to the bill. Ryan v. Anderson, 3 Madd. 174, seems sufficiently to prove that, even if upon principle it would admit of doubt. But there is no such admission in this case by the assignors and assignees. Perhaps, too, an assignment of an equitable interest in the Lippitt contract might be good, though made by parol, at least if it did not include a stipulation for the personal services of Hazard & Co. The case of Heath v. Hall, 4 Taunt. 326, is a strong authority to support it; though I desire to be understood as not giving any absolute opinion on the point. The difficulty lies in the proof de facto of any determinate pa-rol contract-whatever between Hazard & Co. and Low & Fenner. There is no just ground to call upon a court of equity to enforce a specific performance of a contract between the original parties themselves, where its terms are not clear, definite and positive. A fortiori,.there is still more difficulty in enforcing it against an assignee of the party, against whom the specific performance is sought. Besides, it is abundantly proved, that Low & Fenner have, on various occasions, denied, that there was any such contract of assignment between them and Hazard & Co., or that they had any interest in the Lippitt contract. But if the existence of such a contract of assignment to Low & Fen-ner were completely established in proof, it would be difficult for them, or for the plaintiff, as their assignee, now to demand a specific performance of it, or to assert any rights acquired under it, under existing circumstances. A party, to entitle himself to a specific performance of a contract of this sort, after such a lapse of time, should show, that he had been always ready to perform his part of it. Now, Low & Fenner have not shown, that they were ready to perform the contract, as they state it, at all times, before the failure of Hazard & Co., as well as after. They have never supplied, or offered to supply the cotton for the mill to Lippitt. They have never assisted or offered to assist Almy in supplying it. They come now, long after the period for the due supply has passed, and ask for relief, against their own laches and default. Surely they ought not now to be permitted to turn round, and demand of Al-my to be let in to the benefits of a contract, which they have expressly repudiated, by denying, in his presence and otherwise that they had any interest therein; and, without bearing any of the hazards of the supply, now to insist upon sharing the profits. Besides, I am not satisfied, that the assignment to Almy of the contract of Hazard & Co. with Lippitt was not made with the full assent of Low, one of the; partners of Low & Fenner; and if it was made with his assent, then it bound the firm. That assignment contains the following clause, to which I have already alluded: “It is further agreed, that if Low & Fenner should redeem their one half of the aforesaid contract by the payment of the drafts drawn on them by R. Hazard & Co. on account thereof, to return half of the aforesaid $5000 to said S. Almy, he relinquishing to said Low & Fenner all claim upon the aforesaid one half of the said contract.” Now, when was this redemption by the payment of the drafts to be made by Low & Fenner? Certainly not at an indefinite period. It must have been contemplated by the parties, that it was to be immediately done, or at least within a reasonable time. If Low & Fenner meant to derive any benefit from the clause, it was their duty to proceed forthwith to pay and take up these drafts. They took no steps for this purpose, until years afterwards; and they must, therefore, be deemed to have waived any rights to be derived therefrom. Indeed, there is no proof, that they ever undertook to act upon any such claim, until a very recent period. The claim, which they now assert through their assignee (the plaintiff) is in effect, to take from Almy half the profits of the Lip-pitt contract, as it has turned out in the event beneficial, without having incurred any risk whatsoever, or even having enabled Al-my to make any demand upon them for any loss, or for any fulfilment of the supposed obligation on their side. There is no reciprocity in the ease. They have never entered into any contract with Almy to supply any share of the cotton, or to advance any money towards the completion of the Lippitt contract. Under such circumstances, there is as little equity in this claim of Low & Fenner, as can well be imagined. Indeed, they now press a further claim; and insist upon having the other half profits applied towards the payment of the debt of Lippitt for the machinery of the mill. Upon the actual frame of the bill, there is no pretence for this claim; and in this stage of the cause it is too late to ask for an amendment of it. The proceedings have passed the stage, in which they are amendable.
As to the supposed settlement of the claim of Low & Fenner in the Lippitt contract by
But there is an objection to the title of the plaintiff of a more general nature, and which is fatal to it, in whatever form it could be presented. The contract with Lippitt was made on the 7th of March. 182S, and it was to expire in two years, that is to say, on the 7th of March, 1830. The assignment to Al-my of that contract did not take place until the 9th of March, 1830, after the term had expired, for which it was to operate. The suit, then, is not maintainable against Almy for anj* future profits, unless the contract was renewed by Lippitt with Almy, for the benefit of Low & Fenner, as well as himself. There is not the slightest proof of the renewal of the contract for any such purpose; or, indeed, for any purpose. Nor is there the slightest proof, that Almy ever agreed to pay over to Low & Fenner one half of the profits, which he might obtain by continuing to supply Lippitt upon the terms of the old contract. Lippitt himself utterly denies, that he ever had any knowledge of any contract with Low & Fenner, on the subject at any time; so that he never could have agreed to any. The right reserved, under the original contract between Hazard & Co. with Lippitt to continue the contract after the expiration of the two years, was a right not reserved to either party, but to Lippitt alone. He was not bound to-continue it; and there is no proof, that he intended to continue it. The contract of Lippitt with Almy must be treated as a new contract between them, for it totally dispensed with the personal services of Hazard & Co. And Low & Fenner have not shown any original or derivative title to partake of the benefits or share the losses under that contract.
I have gone over the matters in the present bill farther than was necessary to decide it, from an anxiety to show, that in every view, which I have taken of the case, the plaintiff has no merits. But I desire to be understood as resting my opinion mainly on these three grounds: First, the assignment to the plaintiff, Kendall, does not convey any title to the Lippitt contract, even if Low & Fen-ner had an interest in it; for the terms of that assignment do not embrace such an interest. Secondly, the contract, as set up in the bill, whether verbal or -in writing, is not proved. Thirdly, the original contract with Lippitt expired before the assignment to Al-my, and therefore Low & Fenner could claim no title except under a new contract, to which they were parties, and by which they were bound. They have shown no such title. The bill is, therefore, dismissed, with costs.