127 Mass. 34 | Mass. | 1879
It appears upon the facts reported in this bill of exceptions, that Francis, upon whom the order was drawn, was the attorney of record for the principal defendant in a suit against the trustee Wilde. At the trial in that suit, in September 1877, about six months after the date of the order, a verdict was rendered in favor of Coleman against Wilde, and the case was continued for judgment on account of the pendency of this present trustee process, and no judgment has yet been rendered. The order upon Francis has never been accepted, and it is manifest that no funds have yet come to his hands from which the order could be said to be payable, if it had been accepted. It is insisted, on the part of the claimant, that this order operated as an assignment to himself of whatever might be recovered in the suit referred to.
In United States v. Vaughan, 3 Binn. 394, which is cited by the claimant, the decision was that a sale in London of shares in the United States Bank, the price being paid, and the certificates delivered with a power of attorney indorsed to provide for the making of the formal transfer, was sufficient to constitute an equitable assignment, good and effectual against an intervening attachment. And in Clemson v. Davidson, 5 Binn. 392, the court, in giving judgment, say that any order, writing or act appropriating a fund may amount to an equitable assignment of that fund. But the question what shall amount to such an appropriation is not determined by either of these cases.
The case mainly relied upon by the claimant is Hamilton v. M’Coun, 2 Hall, 522. In that case a policy of insurance had been placed in the hands of an attorney, who gave a receipt for it, certifying that he had taken the proofs of a loss which was claimed of the insurance company, and that he held the policy to await the answer of the company. Upon the back of the receipt was "an order from the assured, addressed to the attorney, directing him to hold the policy subject to the order of one of the creditors of the assured, and the receipt so indorsed was delivered to that creditor, and exhibited to the attorney. It was held that the order indorsed upon the receipt and shown to the attorney constituted an assignment of the right of action upon
In the case at bar, the order upon Francis does not purport to be an assignment of Coleman’s claim and suit against Wilde, and is not expressed in terms appropriate to that purpose. It is a notice or request to him to pay such moneys as may be due to Coleman from the Wilde case, “ and this shall be your receipt for the same.” But not only were there no funds from that source in the hands of Francis, but he had no such control of the claim from which the funds were to come that he could be said to have even a constructive possession, or a certainty of ultimately getting possession. It was wholly contingent and uncertain whether he ever would be in funds from that source, and that contingency depended entirely upon the mere will and pleasure of his client. It was in the power of Coleman at any moment, notwithstanding the existence of the order, to revoke any authority which he had given to Francis as his attorney, and to appoint another, or to take the collection of the fund wholly into his own hands.
It is true that an order drawn against funds in the hands of the drawee may under some circumstances operate as an assignment. And in Bourne v. Cabot, 3 Met. 305, cited by the claimant, the order purported to be payable from funds that might come to the drawee’s hands belonging to the drawer. But that was a case in which the order had been accepted, and it was to be paid out of the proceeds of property actually placed in the acceptor’s hands to sell, for the purpose of repaying advances. In the case at bar, the order was a mere authority to Francis, if funds should come to his hands, to pay them to Lincoln. The drawer conveyed nothing, and parted with no control of any fund due or belonging to him. There was no effective appropriation, actual or constructive, of the subject-matter in favor of the claimant. Stearns v. Quincy Ins. Co. 124 Mass. 61.
Hxc&ptions sustained.
