Stott v. Franey

ASSIGNMENT OF THE RIGHT TO RECEIVE ClTY WARRANTS TO BE ISSUED IN FUTURE — Equity Jurisdiction. — A contractor to do work on the streets of a city may assign, his right to receive the warrants for such work, and such assignment creates an equitable interest in such expectancy, which a court of equity wiU protect by decreeing the delivery of the warrants when issued. The interest created by such an assignment is equitable, not legal. President of East Portland Council — Section 15 of Charter, 1885. — This provision of the charter of the city of East Portland does not prevent the president of the council from taking an assignment of the right to receive warrants to be issued in the future for work already performed on the streets of the city, and such an assignment is not unlawful.

Multnomah county: L. B. Stearns, Judge. Defendants appeal. The facts out of which this controversy has arisen are briefly these: The defendant Franey and one John E. Woods jointly contracted with the city of East Portland to do the grading and graveling of Twelfth street in said city, and to construct the side and cross-walks thereon. These parties had a prior arrangement between themselves whereby each was to do certain specified parts of the work without sharing profits or losses with each other. About July 17, 1889, Woods having substantially completed his part of the work, for a valuable consideration, sold, assigned and transferred in writing to the plaintiff all warrants to be issued by the city of East Portland to Franey and Woods for laying the side and cross-walks in front of and abutting certain specified blocks on said street. On the 20th day of July, 1890, Woods made a similar sale and assignment of other warrants to be issued for work of the same character in front of other specified blocks on said street to Hall Brothers, who assigned the same to the plaintiff; that thereafter the city of East Portland issued the warrants in controversy in the name of Franey and Woods and left them in the hands of the recorder Llewellyn, who, upon the expiration of his term of office, delivered the same to his successor, the defendant Mayo; that the warrants were not actually issued until September, 1889, at which time, by the request of Franey and Woods, separate warrants were issued for the grading and graveling and for the side and cross-walks, and those for grading and graveling were' delivered to the defendant Franey in compensation for his part of said work, and those issued for the cross and side-walks, being the warrants now in controversy, were intended for said Woods in payment for his part of said work. Another object of this suit was to enjoin an action at law which Franey had commenced in the name of Franey and Woods to recover the said warrants row in controversy, and then in the possession of the defendant Llewellyn. The plaintiff had a decree from which the defendant Franey has appealed to this court. It is well settled that a person cannot come into equity to enforce a pure legal demand. (3 Pom. Eq. Juris. § 1361; 1 Pom. Eq. Juris. §§ 176, 221.) Plaintiff must clearly show that there is no remedy at law. (Mitchell v. Oakley, 7 Paige, 70; Savage v. Allen, 54 N. Y. 463; Livingston v. Livingston, 6 Johns. Oh. 497,10 Am. Dec» 353; 27 Cal. 643; 20 How. (IT. S.) 156.) The complaint must set forth the facts how plaintiff was irreparably injured; a mere statement is not sufficient. (1 Hill’s Code, 418; City v. Baker, 8 Or. 357; Ladd v. Bamsby, 10 Or. 211; Taylor v. Welch, 6 Or. 202; Crocker v. Baker, 3 Abb. Pr. 183.) ■ Where want of jurisdiction appears, it is the duty of the court, at any stage, on its own motion, to dismiss. (4 Or. 875; 8 Or. 487; Love v. Morrill, 19 Or. 545.) Any agreement which in itself contemplates, involves or requires, or is calculated to induce, a dereliction or laxity in the performance of the public or private duty of men, is void. (Greenh. on Pub. Pol. 308; Lucas v. Alien, 80 Ky. 682.) Corrupt intent not necessary to be shown, (Greenhood, 815-337.) An employment by or under authority of common council of a city of one of its members, to render services for the city, is against public policy, and an action cannot be maintained against the city to recover for such services rendered. (Smith v. City of Albany, 61 N. Y. 444; Holladay v. Patterson, 5 Or. 180; Spence v. Harvey, 22 Cal. 336, 83 Am. Dee. 69.) Before an actual transfer of the property in chattels not specific can take place, it is in general indispensable that the subject-matter be made specific. Until this be done and the parties are agreed as to the specific identical goods, the contract can be no more than an executory agreement to sell, and the property does not pass. (Qillet v. Hill, 2 C. & M. 530; Austin v. Chaney, 4 Taunt. 644; Scudder v. Worster, 11 Cush. 573.) But if a given number out of the whole are sold, no title is acquired by the purchaser until they are separated and their identity thus ascertained and determined. (Q'ofoot v¿ Bennett, 2 N. Y. 258; 2 Kent Com. 496; Randolph Iron Co0 V. Elliott, 34 N. J. L. 184; 15 Dana (Ky.), 217.) Franey had partnership lien or equity upon Woods5 interest to the amount of Woods5 debts on street work. (3 Pom. Eq. Jur. § 1243; 2 Bates on Part. § 820; 1 Lind, on Part. 136, 352.) The attempted assignment or transfer by Woods to pay private debts was a fraud upon the firm, and void as long as the firm debts remained unpaid. (1 Bates, Part. §§ 405,410; 1 Lind. Part. 171; Menagh v. Whitewell, 52 N. Y. 158,11 Am. Rep. 683.) Partnership is the result of an agreement to share profits and losses. (Lind, on Part. 10; Rhines v. Feikert, 92 111. 305.) Admitting that they were in fact partners, one member of the firm has authority to dispose of the fruits of the partnership, and no partnership lien attachés thereto. (Lind, on Part. 146, 169, 352, 353; McCormick v. McCormick, 7 Neb. 440; Winship v. Bank of U. S. 5 Pet. 529; Harris v. City of Baltimore, 17 Atl. 1046, Md.) There was no such holding out of partnership by either Franey or Woods as to mislead third persons. (Lind, on Part. *44; Herbert v. Callahan, 35 Mo. App. 498; Roper v. Schaefer, 35 Mo. App. 30; Seabury v. Bolles, 51 N. J. L. 103.) The claim of appellant that the sale by Woods to Stott of a portion of the warrants in controversy is void from public policy, is not maintainable. First, because appellant has not pleaded the same in his answer; and, second, the question cannot be raised in a collateral proceeding where neither the public nor a citizen claims to be injured by reason of the act complained of. (Richardson v. Welch, 47 Mich. 309, 11 N. W. Rep. 172; Atchison & N. R. Co. v. Miller, 16 Neb. 661, 21 N. W. Rep. 452.) ,