Gardner v. Hoeg

35 Mass. 168

• Court: Massachusetts Supreme Judicial Court
• Decided: July 2, 1836
• Status: Published

Opinion

Putnam J.

delivered the opinion of the Court. There is a sufficient subject to which the contract was to attach. It is a chose in action, always assignable in equity for good consideration, and courts of law at this day protect the rights of the assignee. He may sue in the name of the assignor, and if the assignor discharge the debtor who has notice of the assignment, it shall not prejudice the claim of the assignee. The possibility of a term is assignable upon good consideration. Theobald v. Duffay, (in House of Lords, March 1729-30.) 1 P. Wms. 574, note. It is analogous to the spei emptio ; the drought of the net, which by the civil law might be assigned. Macomber v. Parker, 14 Pick. 505. The assignor had, by the shipping articles, an inchoate right to a distributive share of the oil upon the making up the account at the end of the voyage ; and we think it was a subject matter for a valid sale, notwithstanding if was a thing which existed in expectation, and not in esse, at the time.

We doubt very much the expediency of such sales or assignments ; for so far as the ultimate success of the voyage is concerned, it is very clear, that if all the seamen were to have neither more nor less at the end of it, or in other words, if the compensation were not according to the amount to be divided at the winding up of the voyage, the great stimulus to individual exertion would be removed. And it is upon that principle, that the seaman is not permitted by law to insure his wages. There may, on the other hand, be some reasons of convenience almost amounting to necessity, which call for such or. arrangement. However this may be, until the legislature shall aake some regulations upon this matter, the Court, we think, ought not to interfere on the ground of public policy.

By St. 1 Geo. 2, c. 14, § 7, every bargain, sale, bill of sale, contract, and agreement whatever, of, for, or concerning any pay, wages, or allowance due or to grow due to any seaman or seamen in the service of His Majesty, for such service, is declared void and of no effect. Com. Dig. Chancery, 2 H. About twenty years before that statute it was held, in Crouch v. Martin, 2 Vern. 595, that the assignment of wages by a seaman was a valid contract. The St. 1 Geo. 2, before cited, regulated this subject so far only as it concerned His Majesty’s service, and did not alter the law as before held, touching the merchant service. And by St. 20 Geo. 2, c. 24, bills of sale of prizes before condemnation, are declared void. Morrough v. Comyns, 1 Wils. 213.

The half pay of officers is not assignable for reasons of public policy. Such emoluments are granted for the dignity of the state and for the support of the officers. Flarty v. Odlum, 3 T. R. 682.

The question of fraudulent intent was waived by the parties, except so far as it might be the conclusion of law upon the facts found. And we all think that no legal inference of fraud can be made from the facts which are in the case.

When the assignment was made there was a promise on the part of the assignee to advance money to the assignor before he sailed, and to make supplies to his family, which promise was fulfilled, and the transaction was according to the known usage at Nantucket; which we cannot say is illegal, though we doubt somewhat of its expediency ; and notice of the assignment was given to the owners before the trustee process was served.

Upon the whole, we- are all of opinion that the assignment was valid, and that the trustees must be discharged.