Vreeland v. Blunt & Tompkins

6 Barb. 182 | N.Y. Sup. Ct. | 1849

By the Court, Hurlbut, J.

Thé objection based on the pendency of another suit instituted by Smith for the same cause of complaint, ought not to prevail. The present bill is more comprehensive, and embraces more Completely the whole subject in dispute, than the bill preferred by Smith. No decree has been made in that suit, and upon a proper application it may be dismissed on such terms as will protect the rights of all the parties concerned.

The objection that the plaintiff had a complete remedy at law was not taken in the answer. But if it had been, it could not have availed the defendant; for whether the plaintiff stands in the position of a judgment creditor pursuing the assets of his debtor by the ordinary creditor’s bill; or claims the specific application of the fund in the hands of Mr. Blunt, to the payment of his judgment, by reason of an alledged equitable assignment in his favor, he is equally entitled to come into a court of equity for relief.

The plaintiff has succeeded to all the rights of Smith, in whose favor Tompkins directed the defendant Blunt to pay the claim in controversy out of moneys he should receive for Tompkins from Francis Griffin. Mr. Blunt agreed to pay when he should receive the funds from Griffin. He was put in funds by the latter before the commencement of this suit, and admits that at that time he had $1200 in his hands.

The decree from which this appeal was taken, was based in part on the idea that the draft and acceptance did not amount to an equitable assignment of the funds in the hands of Mr. Blunt, because, as the assistant vice chancellor thought, it was simply a bill of exchange payable at large and not out of any particular fund. But it is very clearly otherwise. The draft directed Mr. Blunt to pay out of the moneys he should receive for the drawee, from Francis Griffin. A fund was raised by the drawee, by the aid of Griffin, and placed in the hands of Mr. Blunt, to answer certain specified purposes, among which was this payment of Smith’s claim. The fund thus raised was of a specified amount; it was identified as coming from a particular source; and it was appropriated to a specific object. The holder of the fund had no interest in it—he was bound to apply it as directed by the owner—and he accepted the draft of the latter as payable specifically out of this fund. It seems clear that the draft was payable out of this particular fund, which must be regarded as equitably appropriated for that purpose. (See Morton v. Naylor, 1 Hill, 583; Bradley v. Root et al. 5 Paige, 632 ; Yeates v. Groves, 1 Vesey, jun. 280.) As to the objection that the plaintiff has not proved the amount which was due Smith on the draft, it may be observed, that Mr. Blunt was not interested in the performance of the contract between Smith and Tompkins; and if the latter chose to waive its performance in part, and to release Smith from the fulfilment of a condition on which the draft was originally made payable, it is not competent for Mr. Blunt to object. The plaintiff’s claim is established by a judgment against Tompkins. He is the principal debtor, whose liability is fixed and determined, and Mr. Blunt, as the naked holder of the fund, bound by agreement to apply it for the plaintiff’s benefit, can not alledge that which his principal is precluded from urging, against the application of the fund to the payment of the judgment.

So much of the decree of the assistant vice chancellor as was appealed from, must be reversed with costs, and a decree must be entered declaring the plaintiff entitled to be paid the amount of his judgment with interest and costs of this suit, and of this appeal, out of the funds in the hands of Mr. Blunt, as admitted in this suit, upon which interest must be charged from October 20, 1845, the day when the plaintiff demanded to have the moneys applied to the satisfaction of his judgment.