Benedict v. Williams

U.S. Circuit Court for the District of Southern New York

Benedict v. Williams

10 F. 208, 20 Blatchf. 276, 1882 U.S. App. LEXIS 2275

CourtU.S. Circuit Court for the District of Southern New York

DecidedFebruary 2, 1882

StatusPublished

This text of 10 F. 208 (Benedict v. Williams) is published on Counsel Stack Legal Research, covering U.S. Circuit Court for the District of Southern New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Benedict v. Williams, 10 F. 208, 20 Blatchf. 276, 1882 U.S. App. LEXIS 2275 (circtsdny 1882).

Pincite

Opinion

Wheeler, D. -J.

This cause has been beard on demurrer to- tbe bill. It was commenced in tbe state court, and removed to this court. Tbe bill shows that tbe defendant Williams, a citizen of Connecticut, made a contract with tbe defendant Kernochan, a citizen of Massachusetts,’ by the- terms of which tbe latter was to conduct litigation in behalf of the former against the Kansas Pacific Bailway Company, as counsel, and to receive one-fourth part of avails thereof for so doing; that by a contract between Kernochan and Edwin B. Meade and Henry'E. Knox the latter two were to assist in the conduct of the litigation, and to share equally with the former in the one-fourth part of the avails; that the litigation was conducted by them with the knowledge of Williams, and proceeded until the sum of $27,500 was received from it as the avails of it, by him; that Meade sold and assigned his share of these avails to the orator, a citizen of New York; that Knox has been fully settled with, and that Meade’s share has not been paid over.

The principal grounds of demurrer assigned are that there was no privity of contract between either Williams and Mead'e or Williams and the orator; that Williams is only liable to Kernochan, who may be liable over to Meade or to the orator; and that the orator’s remedy, if he has any, is at law. The want of privity relied upon, how[209]*209ever, is not material. It may be that the orator had only to pay Kernochan as he agreed to, but, if so, he has not paid to, Kernochan Meade’s share. That share, if payable to Kernochan, was payable to him for Meade, and Meade would have the' right to proceed for it against both; against Kernochan as his trustee, and against Williams as a debtor to his trustee for him. This right he could' sell and assign, as the bill alleges he did sell and assign it to the orator; and when so sold and assigned to the orator, he became vested with the right also in some manner to enforce it.

It is understood that the distinctions between legal and equitable procedure are done away with in the state courts, .from which the case was removed; and that there the remedy is to be sought by the real owner of a cause of action in his own name. In those courts these distinctions are kept up, although the proceedings at law conform to those of the courts of the state.

At common law a mere chose in action was not assignable at all, although it was assignable in equity, and hence an assignee of a chose in action could not maintain an action at law upon it in his own name, but could in the name of the assignor for his own benefit, or he could proceed in equity to recover it, and, if he did, must proceed in his own name. The orator took the only mode that was open to him in the state court. Had the proceedings remained there his rights would have been wrought out by the appropriate methods there provided. But when the proceedings were removed into this court, they were neither removed from a court of law, or the law side of a court, to the law side of this court, nor from a court of equity, or from the equity side of a court to the equity side of this court; but they were removed from that court as, it was, where remedies are administered without this distinction, to this court, where this distinction is observed. And the removal was necessarily to that side of this court, where the appropriate relief, if due, could be obtained. He is merely the assignee of a chose in action, which accrued to Meade, or to Ker-nochan for Meade. The proceedings are in his own name, and he can go forward with such proceedings only on the equity side of the court. His right is a purely equitable one, and strictly cognizable in his own name in a court of equity only, or only where equitable remedies are administered, and the remedy is none the less equitable because it might not be so classed in the state court.

The demurrers are overruled, with leave to the defendant to answer over within 30 days on payment of costs of demurrer.

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Wheeler, D. -J.

This cause has been beard on demurrer to- tbe bill. It was commenced in tbe state court, and removed to this court. Tbe bill shows that tbe defendant Williams, a citizen of Connecticut, made a contract with tbe defendant Kernochan, a citizen of Massachusetts,’ by the- terms of which tbe latter was to conduct litigation in behalf of the former against the Kansas Pacific Bailway Company, as counsel, and to receive one-fourth part of avails thereof for so doing; that by a contract between Kernochan and Edwin B. Meade and Henry'E. Knox the latter two were to assist in the conduct of the litigation, and to share equally with the former in the one-fourth part of the avails; that the litigation was conducted by them with the knowledge of Williams, and proceeded until the sum of $27,500 was received from it as the avails of it, by him; that Meade sold and assigned his share of these avails to the orator, a citizen of New York; that Knox has been fully settled with, and that Meade’s share has not been paid over.

The principal grounds of demurrer assigned are that there was no privity of contract between either Williams and Mead'e or Williams and the orator; that Williams is only liable to Kernochan, who may be liable over to Meade or to the orator; and that the orator’s remedy, if he has any, is at law. The want of privity relied upon, how[209]*209ever, is not material. It may be that the orator had only to pay Kernochan as he agreed to, but, if so, he has not paid to, Kernochan Meade’s share. That share, if payable to Kernochan, was payable to him for Meade, and Meade would have the' right to proceed for it against both; against Kernochan as his trustee, and against Williams as a debtor to his trustee for him. This right he could' sell and assign, as the bill alleges he did sell and assign it to the orator; and when so sold and assigned to the orator, he became vested with the right also in some manner to enforce it.

It is understood that the distinctions between legal and equitable procedure are done away with in the state courts, .from which the case was removed; and that there the remedy is to be sought by the real owner of a cause of action in his own name. In those courts these distinctions are kept up, although the proceedings at law conform to those of the courts of the state.

At common law a mere chose in action was not assignable at all, although it was assignable in equity, and hence an assignee of a chose in action could not maintain an action at law upon it in his own name, but could in the name of the assignor for his own benefit, or he could proceed in equity to recover it, and, if he did, must proceed in his own name. The orator took the only mode that was open to him in the state court. Had the proceedings remained there his rights would have been wrought out by the appropriate methods there provided. But when the proceedings were removed into this court, they were neither removed from a court of law, or the law side of a court, to the law side of this court, nor from a court of equity, or from the equity side of a court to the equity side of this court; but they were removed from that court as, it was, where remedies are administered without this distinction, to this court, where this distinction is observed. And the removal was necessarily to that side of this court, where the appropriate relief, if due, could be obtained. He is merely the assignee of a chose in action, which accrued to Meade, or to Ker-nochan for Meade. The proceedings are in his own name, and he can go forward with such proceedings only on the equity side of the court. His right is a purely equitable one, and strictly cognizable in his own name in a court of equity only, or only where equitable remedies are administered, and the remedy is none the less equitable because it might not be so classed in the state court.

The demurrers are overruled, with leave to the defendant to answer over within 30 days on payment of costs of demurrer.

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Bluebook (online)

10 F. 208, 20 Blatchf. 276, 1882 U.S. App. LEXIS 2275, Counsel Stack Legal Research, https://law.counselstack.com/opinion/benedict-v-williams-circtsdny-1882.