Kane v. Clough

36 Mich. 436, 1877 Mich. LEXIS 168

• Court: Michigan Supreme Court
• Decided: April 24, 1877
• Status: Published

Opinion

Cooley, Ch. J:

This is a suit by garnishee process to recover of defendants a sum owing by them to one Tucker, of whom the plaintiffs are judgment creditors. The garnishee process was served December 9, 1875. On the 16th of October, 1874, Tucker was employed by the defendants doing piecework in the manufacture of organs, but without any definite contract for the continuance of the -employment. Being then indebted to his mother for money loaned, he executed to her an assignment of all the wages that might thereafter become due to him from the defendants. Between that date and December 9th following, sixtv-fire dollars and fifty cents had become due to him, which was less than he was then owing to his mother. It is this sum which is now in dispute; the plaintiffs claiming that the assignment could not reach it, because the moneys were not earned when the assignment was made, and there was no subsisting contract under which they were to be earned.

It has often been decided that a mere possibility is not the subject of assignment. A contingent claim against a foreign country to damages to be recovered by treaty is an illustration.—Vasse v. Comegys, 4 Wash. C. C., 570. A sale of fish thereafter to be caught passes no title when they are caught.—Low v. Pew, 108 Mass., 347. The-same is held of a sale of sums to be earned by. a physician in' specified future years.—Skipper v. Stokes, 42 Ala., 255; and see Purcell v. Mather, 35 Ala., 570. In Massachusetts an assignment of future services, there being no existing contract of service, has been held invalid; but cases are cited in the same state which hold that if the assignor is at the time under a contract of service, it is maintainable.—Mulhall v. Quinn, 1 Gray, 105; see also Hartley v. Tapley, 2 Gray, 565. An officer may assign his salary, though removable at any time.—Brackett v. Blake, 7 Met., 335. In Pennsylvania an assignment which professes to transfer a debt to ■ arise for wages not yet earned, against, any one by whom the assignor may thereafter be employed, is held to be ineffectual even after the wages are earned.—Jermyn v. Moffitt, 75 Penn. St., 399. In New Hampshire it is decided that wages to become due may be effectually assigned, provided there is at the time an existing contract under which they are to be earned.—Garland v. Harrington, 51. N. H., 409. The like conclusion is reached in Connecticut.—Hawley v. Bristol, 39 Conn., 26; Augur v. N. Y., etc., Co., 39 Conn., 536. The distinction between the-cases in which the wages are not earned under a contract existing at the time of the assignment and those in which they are, is said to be that “in the former the future earnings are a mere possibility, coupled with no interest, while in • the latter the possibility of future earnings is coupled with an interest, and the right to thorn, though contingent and liable to be defeated, is a vested right.”—Low v. Pew, 108 Mass., 347, 350.

But an assignment of demands having no actual existence, though invalid at law, may be valid in equity as an agreement, and take effect as an assignment when the demands intended are subsequently brought into existence.—Field v. New York, 6 N. Y., 179; Mitchell v. Winslow, 2 Story C. C., 630, 638. And in this case the assignee would have had a plain right, we think, to protect her interest under the assignment to the extent to which the wages were earned, if the sum had been sufficient to give the court of chancery jurisdiction. And it is worthy of consideration whether, under the garnishee laws, it was the intention to permit the creditor to reach demands to which the debtor had no equitable right, even though his legal title had not been parted with, or to force the equitable owner into a suit in equity for the protection of his rights.

But we are inclined to think this case ought not to be distinguished from those in which the wages were earned under a continuous contract. The defendant was employed at the time the assignment was made.' It is true he might never have received more work, but the expectation of continuous work existed on the part of employer and employed. The proposed transfer had reference to wages to be earned in an existing employment, and in this it differed from that in Mulhall v. Quinn, supra, where the defendant only performed jobs occasionally. It differs stilly more decidedly from those cases in which no particular employment was in view in making the assignment. We do not see why a continuous employment at piecework should differ from any other continuous employment, if in the latter the right to discharge at will exists. The substantial difference in the two cases is not in the continuance of employment or in the expectation thereof, but in the manner of determining the compensation. Future wages no more exist potentially in the one case than in the other.

The judgment must be affirmed, with costs.

The other Justices concurred.