The following is the opinion of Bradley, J.:
Bradley, J.
On the 4th of December, 1895, the members composing the firm of Potter, Kinne & Kendall, and as such, made to the plaintiff a general assignment for the benefit of their creditors. At that time ■the assignors were insolvent. Their liabilities then amounted to [230]*230. $133,315.33, and, while .the nominal value of - their assets was ■$113,389.22, the estimated actual value of them was'$98,126.40.
On the 24th. day of July, -1.895, they owed the defendant $16,625, represented by. their notes. ■ The plaintiff’s assignors then made and ■delivered to the defendant a transfer of accounts, as per schedule ■thereto annexed, of the nominal amount of $20,391.07, as collateral ■ security for the j>ayment of such notes and any renewal thereof. This instrument of transfer contained the provision that “It is_understood .that said first parties are to act for said bank in collect- . ing said accounts until such time as the authority hereby given shall be ■ countermanded. .' And the said parties of the first part hereby severally agree to pay upon the above indebtedness, through the collection •.of- said accounts or otherwise, at-least the sum of $1,000 upon the tenth day'of each and every month hereafter, until said indebtedness, said . notes, and all renewals-thereof, shall have been fully paid:” It also ■provided that the amount of the accounts which the bank should hold by assignment, from the firm as collateral security should continually, until payment of the indebtedness, bear to it the same proportion given by the transfer first above mentioned, and that, in order to carry into effect such' understanding, the assignors agreed that they would, on . the tenth day of each month, until such indebtedness was paid, make an assignment to the defendant of such new accounts as should accrue against persons making purchases of them, “ so as to maintain and keep good the proportion aforesaid between the indebtedness and the collateral security.” They also agreed to present the defendant, on the tenth day of each month, a written statement of such of the accounts assigned as had been paid.
■ They did deliver to. the defendant monthly statements or schedules of accounts, but made no assignment to it subsequently to that of the 24th of July, 1895. The provisions before mentioned indicate that it may have been contemplated that all -the moneys • collected by the assignors upon the accounts so assigned might not be paid over to the defendant, else the provision for subsequent tránsr fers to continue the proportional relation between the indebtedness .and security would seem to have no substantial significance. It is, therefore, urged, on the part of the plaintiff, .that there was an understanding between the parties to the instrument that the assignors ,might appropriate proceeds of those accounts, -or some part thereof, [231]*231to their own use. But there is no agreement of permission to that effect expressed in the instrument, and none will be inferred unless fairly required by the evidence. (Brackett v. Harvey, 91 N. Y. 214.)
And it may be observed that the agency of the assignors to make collections for the 'defendant relates to the entire accounts assigned up to the amount of the indebtedness to it.
In that' view it is not essential to the validity of the instrument of transfer that they pay over to the defendant the full amount collected. By the terms of the instrument no transfer of the monthly accounts to the defendant was expressed, but it seems to have been contemplated that the assignment of them would subsequently be made.
The maxim in equity, that what is agreed and ought to be done is deemed performed, is available only when good conscience requires its application. "Whatever1 view might be taken of it, if no rights other than those of the assignors were involved, the interests of the creditors adverse to those of the defendant are not to be overlooked. The provision for subsequent assignments of accounts does not seem to have been made to supply any deficiency in the amount of those included'in the assignment of' July twenty-fourth, but to preserve the relative proportion of the security furnished by it to the debt owing to the bank. • The apparent reason for this was in the apprehension that the assignors, by reason of the permission given them to collect the assigned accounts, might appropriate some of the proceeds to their own. use. This, certainly, as against the other creditors, cannot be deemed conscionable, just or allowable.
It appears that the large, portion of the debts which the assignors owed other creditors at the time that the assignment to the plaintiff was made existed at the time of such transfer to the defendant, in . July, 1895. '
The view here taken is that the monthly statements of accounts cannot be deemed to have been ■ assigned tp the defendant, and that they did not become available to it as security for the payment of the indebtedness' of the firm to the bank. The delivery of the schedules of accounts on the books of the assignors constituted no pledge in ■ the legal sensé of the term.
A pledge is a bailment of personal property as security. The entries of account in a book kept by the creditor purport to charge [232]*232the debtors with the amount. The property in sueh case is only in the liability of the persons who are debited in-the account. In the present case the hooks containing the- original entries were retained in the possession of the firm. • When the debtor has furnished evidence of his liability by note or by acceptance of a bill, or in any other legitimate manner, the chose in action may be- the subject of bailment and pledge, as may also he a certificate of stock. ■ The requisite quality of personal property to become a pledge by. delivery does not exist in a mere copy of an account, taken from the hooks of the person to whom it accrued, against another.
After the assignment of July twenty-fourth was made to the defendant, and prior to December 4, 1895, the assignors collected of the'accounts so assigned $11,973.21, of which they paid over to the defendant $3,985. Since the assignment to the plaintiff he has collected of those accounts $789.90, and the defendant has received on the accounts the further sum of thirty-eight dollars and twenty-seven cents ($38.27). The amount collected and received by the assignors of those accounts assigned to the defendant in excess of the sum paid by them' over to it is $7,988.21.
The question, therefore, arises whether or not, as against the plaintiff, the defendant is chargeable with the moneys so collected and retained by the assignors. This would be the consequence as against their judgment and execution creditors, as by reason of the agency-created by the provision in the instrument of transfer, the assignors represented the bank in making the collections, and the- amount so collected by them would be applicable -pro tanto to the payment of the debt, (Conkling v. Shelley, 28 N. Y. 360; Brackett v. Harvey, 91 N. Y. 214, 221; Ellsworth v. Phelps, 30 Hun, 646; Sperry v. Baldwin, 46 id. 120.)
The right of action to set aside a transfer of property made in fraud of creditors by a debtor, who thereafter makes an assignment for the benefit of creditors, is in the assignee. (Laws of 1858, chap. 314; Loos v. Wilkinson, 110 N. Y. 195.)
That is not this case.
Free access — add to your briefcase to read the full text and ask questions with AI
The following is the opinion of Bradley, J.:
Bradley, J.
On the 4th of December, 1895, the members composing the firm of Potter, Kinne & Kendall, and as such, made to the plaintiff a general assignment for the benefit of their creditors. At that time ■the assignors were insolvent. Their liabilities then amounted to [230]*230. $133,315.33, and, while .the nominal value of - their assets was ■$113,389.22, the estimated actual value of them was'$98,126.40.
On the 24th. day of July, -1.895, they owed the defendant $16,625, represented by. their notes. ■ The plaintiff’s assignors then made and ■delivered to the defendant a transfer of accounts, as per schedule ■thereto annexed, of the nominal amount of $20,391.07, as collateral ■ security for the j>ayment of such notes and any renewal thereof. This instrument of transfer contained the provision that “It is_understood .that said first parties are to act for said bank in collect- . ing said accounts until such time as the authority hereby given shall be ■ countermanded. .' And the said parties of the first part hereby severally agree to pay upon the above indebtedness, through the collection •.of- said accounts or otherwise, at-least the sum of $1,000 upon the tenth day'of each and every month hereafter, until said indebtedness, said . notes, and all renewals-thereof, shall have been fully paid:” It also ■provided that the amount of the accounts which the bank should hold by assignment, from the firm as collateral security should continually, until payment of the indebtedness, bear to it the same proportion given by the transfer first above mentioned, and that, in order to carry into effect such' understanding, the assignors agreed that they would, on . the tenth day of each month, until such indebtedness was paid, make an assignment to the defendant of such new accounts as should accrue against persons making purchases of them, “ so as to maintain and keep good the proportion aforesaid between the indebtedness and the collateral security.” They also agreed to present the defendant, on the tenth day of each month, a written statement of such of the accounts assigned as had been paid.
■ They did deliver to. the defendant monthly statements or schedules of accounts, but made no assignment to it subsequently to that of the 24th of July, 1895. The provisions before mentioned indicate that it may have been contemplated that all -the moneys • collected by the assignors upon the accounts so assigned might not be paid over to the defendant, else the provision for subsequent tránsr fers to continue the proportional relation between the indebtedness .and security would seem to have no substantial significance. It is, therefore, urged, on the part of the plaintiff, .that there was an understanding between the parties to the instrument that the assignors ,might appropriate proceeds of those accounts, -or some part thereof, [231]*231to their own use. But there is no agreement of permission to that effect expressed in the instrument, and none will be inferred unless fairly required by the evidence. (Brackett v. Harvey, 91 N. Y. 214.)
And it may be observed that the agency of the assignors to make collections for the 'defendant relates to the entire accounts assigned up to the amount of the indebtedness to it.
In that' view it is not essential to the validity of the instrument of transfer that they pay over to the defendant the full amount collected. By the terms of the instrument no transfer of the monthly accounts to the defendant was expressed, but it seems to have been contemplated that the assignment of them would subsequently be made.
The maxim in equity, that what is agreed and ought to be done is deemed performed, is available only when good conscience requires its application. "Whatever1 view might be taken of it, if no rights other than those of the assignors were involved, the interests of the creditors adverse to those of the defendant are not to be overlooked. The provision for subsequent assignments of accounts does not seem to have been made to supply any deficiency in the amount of those included'in the assignment of' July twenty-fourth, but to preserve the relative proportion of the security furnished by it to the debt owing to the bank. • The apparent reason for this was in the apprehension that the assignors, by reason of the permission given them to collect the assigned accounts, might appropriate some of the proceeds to their own. use. This, certainly, as against the other creditors, cannot be deemed conscionable, just or allowable.
It appears that the large, portion of the debts which the assignors owed other creditors at the time that the assignment to the plaintiff was made existed at the time of such transfer to the defendant, in . July, 1895. '
The view here taken is that the monthly statements of accounts cannot be deemed to have been ■ assigned tp the defendant, and that they did not become available to it as security for the payment of the indebtedness' of the firm to the bank. The delivery of the schedules of accounts on the books of the assignors constituted no pledge in ■ the legal sensé of the term.
A pledge is a bailment of personal property as security. The entries of account in a book kept by the creditor purport to charge [232]*232the debtors with the amount. The property in sueh case is only in the liability of the persons who are debited in-the account. In the present case the hooks containing the- original entries were retained in the possession of the firm. • When the debtor has furnished evidence of his liability by note or by acceptance of a bill, or in any other legitimate manner, the chose in action may be- the subject of bailment and pledge, as may also he a certificate of stock. ■ The requisite quality of personal property to become a pledge by. delivery does not exist in a mere copy of an account, taken from the hooks of the person to whom it accrued, against another.
After the assignment of July twenty-fourth was made to the defendant, and prior to December 4, 1895, the assignors collected of the'accounts so assigned $11,973.21, of which they paid over to the defendant $3,985. Since the assignment to the plaintiff he has collected of those accounts $789.90, and the defendant has received on the accounts the further sum of thirty-eight dollars and twenty-seven cents ($38.27). The amount collected and received by the assignors of those accounts assigned to the defendant in excess of the sum paid by them' over to it is $7,988.21.
The question, therefore, arises whether or not, as against the plaintiff, the defendant is chargeable with the moneys so collected and retained by the assignors. This would be the consequence as against their judgment and execution creditors, as by reason of the agency-created by the provision in the instrument of transfer, the assignors represented the bank in making the collections, and the- amount so collected by them would be applicable -pro tanto to the payment of the debt, (Conkling v. Shelley, 28 N. Y. 360; Brackett v. Harvey, 91 N. Y. 214, 221; Ellsworth v. Phelps, 30 Hun, 646; Sperry v. Baldwin, 46 id. 120.)
The right of action to set aside a transfer of property made in fraud of creditors by a debtor, who thereafter makes an assignment for the benefit of creditors, is in the assignee. (Laws of 1858, chap. 314; Loos v. Wilkinson, 110 N. Y. 195.)
That is not this case. It is within the purpose for which the present action is brought to obtain the possession-and control of the assets to which the assignee alleges he is entitled by virtue of. the assignment for the benefit of the creditors of the-assignors, and to enjoin the defendant from collecting the accounts which are alleged [233]*233to have been assigned to the plaintiff. The purpose of the action in that respect is legitimate.
As between the assignors and the defendant, the collections made upon the accounts assigned to the latter did not, to the extent that the money so collected was retained by them, operate as payment on their indebtedness to the defendant. As between such original parties to the assignment to the bank both the debt and the security .remained except so far as the money was paid over to or received by the defendant. (Brackett v. Harvey, supra.)
The assignee of a voluntary assignment for the benefit of creditors of the assignor, except so far ao he is authorized, takes only such powers in respect to the subject of the assignment as the assignor has and can confer upon him, and the equities existing against the assignor remain effectual against the assignee. He has not the •character of a bona fide purchaser. (Reed v. Sands, 37 Barb. 185; Slade v. Van Veehten, 11 Paige, 21; Van Heusen v. Radcliff, 17 N. Y. 580, 582.)
By the statute before referred to, the assignee is vested with the right of action to attack a transfer of property made by his assignor before the assignment in fraud of his creditors. A statutory provision, to enable the assignee in the execution of a trust to pursue, by action, any remedy by which the creditors, as such, represented "by him can lawfully seek equitable relief, may be wise as well as convenient. ..
The permission to the assignors, expressed in the instrument of transfer, to collect the accounts included in it was relieved from the imputation of fraud as against- creditors by the fact that, as they were to make the collections only for the defendant, the creditors can insist that the collections which they did make were made in the execution of such agency, and in that may be seen support for an action for judicial direction that the amount so collected by them be applied in satisfaction pro tanto of the indebtedness to secure which the transfer was made.
As the plaintiff is unable to seek such relief, that subject requires no further consideration in the present case. By the conclusion here' reached both parties have partially succeeded and partly failed in their contentions.
[234]*234THe plaintiff is entitled to tike relief that the defendant be enjoined ¡from collecting or recemngpaymeh-t of any of the: accounts in question other than those included in the assignment to it of date July 24, .1895. :
The defendant is entitled to the benefit of the assignment to it of that date ¡for the purpose of collecting the accounts assigned by that instrument,, an amount not exceeding that remaining unpaid of the indebtedness- which that assignment was made to secure.
And subject only to that right: of the defendant, the, plaintiff, by the assignment to him, took title to the accounts in question, and the defendant is entitled to the amount collected by plaintiff ás aforesaid upon the ^accounts assigned to the defendant.
- Judgment is directed accordingly, with costs to both parties, payable out of the estate-assigned to:plaintiff. -