Milliken v. Barrow

65 F. 888, 1895 U.S. App. LEXIS 3041

• Court: U.S. Circuit Court for the District of Eastern Louisiana
• Decided: January 28, 1895
• Docket: Nos. 12,325 and 12,220
• Status: Published

Opinion

PARLA AGE, District Judge.

By agreement of parties, the two above-entitled causes have been consolidated, and are to be tried as an equity cause, under the style of “Richard Milliken v. Alexander D. Barrow, Syndic, No. 12,325.” The jury has been waived in writing in the case at law, and the parties have stipulated that the whole matter shall be tried by the judge on the agreed statement of facts. By a notarial act of mortgage, executed on March 14, 1892, O. J. Barrow declared himself to be indebted to Richard Mil-liken in the sum of $15,000, amount of loan which Barrow obtained from Milliken to enable him to work and cultivate, during the year 1892, the sugar plantation described in the act. The clause in said act on which the complainant, Milliken, relies to obtain the relief which he prays for, is as follows:

“Now, to secure the faithful performance of each and all of the foregoing obligations, the reimbursement and payment of all costs, charges, expenses, and commissions aforesaid, said mortgagor does by these presents further specially mortgage and hypothecate the hereinbefore described plantation, and all appurtenances thereof, unto and in favor of said mortgagee, and all holders of said note, and does hereby transfer, assign, and pledge unto said mortgagee, and all holders of said note, any and all bounties which shall or may be allowed to said mortgagor by the government of the TTnlfed States on the sugar made on said plantation during the present year, 18!) — ; hereby agreeing to deliver, properly assigned and indorsed, to said mortgagee, all and every certificate and other evidence of claim against the United States for such bounty, and any and all drafts or checks given for said bounty.”

Section 3477, Rev. St. U. S., reads as follows:

“All transfers and assignments made of any claim upon the United States, or of any part or share thereof, or interest therein, whether absolute or conditional, and whatever may be the consideration thereof, and all powers of attorney, orders or other authorities for receiving payment of any such claim, or any part or share thereof, shall be absolutely null and void, unless they are freely made and executed in the presence of at least two attesting witnesses, after the allowance of such a claim, the ascertainment of the amount due, and the Issuance of a warrant for the payment thereof. Such transfers, assignments and powers of attorney, must recite the warrant for payment and must be acknowledged by the person making them, before an officer having authority to take acknowledgments of deeds, and shall be certified by the officer; and it must appear by the certificate that the officer at the time of the acknowledgment, read and fully explained the transfer, assignment or warrant of attorney, to the person acknowledging the same.”

The defendant contends that section 3477, Rev. St., is an insuperable obstacle in the way of the complainant,' and that the agreement between Barrow and Milltken, concerning the sugar bounty, was the assignment of a claim upon the United States, within the prohibition of section 3477, Rev. St The complainant contends that while the agreement may be null under the statute cited, as between the parties and the government, it is binding as between the parties themselves; citing, in support of this proposition, Bailey v. U. S., 109 U. S. 437, 3 Sup. Ct. 272; Goodman v. Niblack, 102 U. S. 556. I have carefully considered the decisions interpreting section 3477, Rev. St.: Trist v. Child, 21 Wall. 446; U. S. v. Gillis, 95 U. S. 407; Spofford v. Kirk, 97 U. S. 484; Erwin v. U. S., 97 U. S. 394; McKnight v. U. S., 98 U. S. 179; Goodman v. Niblack, 102 U. S. 556; Bailey v. U. S., 109 U. S. 432, 3 Sup. Ct. 272; St. Paul & D. R. Co. v. U. S., 112 U. S. 733, 5 Sup. Ct. 366; Trust Co. v. Shepherd, 127 U. S. 494, 8 Sup. Ct. 1250; Butler v. Goreley, 146 U. S. 313, 13 Sup. Ct. 84; Lopez v. U. S. (Court of Claims) 35 Int. Rev. Rec. 31; Howes v. U. S. (Court of Claims) 35 Int. Rev. Rec. 55.

It results clearly, from the decisions just cited, that section 3477, Rev. St., prohibits Hie voluntary assignment of claims upon the United States; hut that the devolution of claims, by operation of law, to heirs, devisees, assignees in bankruptcy, and assignees or syndics under state insolvent laws, is not within the prohibition. It is also clear that powers of attorney to collect claims upon the United States, and voluntary assignments of such claims, are revocable at will, prior to the payment of the claims by the government. If the real question in this case were whether Barrow could make an irrevocable and enforceable assignment of a claim upon the United States, before the allowance of the same, the claim being in esse at the time of the assignment, the case would have to go against the complainant. The supreme court, in Spofford v. Kirk, 97 U. S. 489, discussing the same contention which is now made here by the complainant, to wit, that the agreement was null quoad the government, but valid as between the parties, said:

“It Is hard to see how a transfer of a debt can be of no force, as between the transferee and the debtor, and yet effective, as between the creditor and his assignee, to transmit an ownership of the debt or create a lien. * * * We cannot see, when the statute declares that all transfers and assignments of the whole of a claim, or any part or interest therein, and all orders, powers of attorney, or other authority for receiving payment of the claim, * * * shall be absolutely null and void, that they are only partially null and void, and that they are valid and effective as between the parties thereto, and only invalid when set up against the government.”

It is settled by the highest authority that the sole object of the statute is to protect the government, not the claimant. Goodman v. Niblack, 102 U. S. 560; Bailey v. U. S., 109 U. S. 439, 3 Sup. Ct. 272. Section 3477, Rev. St., is the act of February 26, 1853, carried into the Revised Statutes. Its title, which should be noticed, is “An act to prevent frauds upon the treasury of the United States.” The statute would utterly fail in its sole object, if powers of attorney and assignments were irrevocable and enforceable by the courts. It is settled that they are revocable and unenforceable. Spofford v. Kirk, 97 U. S. 489; Bailey v. U. S., 109 U. S. 439, 3 Sup. Ct. 272; Lopez v. U. S. (Court of Claims), above cited. In Bailey v. U. S., relied upon by complainant, where a party was allowed a large sum by the government, and the same was paid to an agent of the claimant under a power of attorney which the claimant had executed before the allowance, but which he had permitted to remain unrevoked after the allowance, and. the claimant sued the government to make it pay the claim a second time, it was simply held that the claimant was estopped. By not revoking the power of attorney which he >had granted before the allowance, and permitting it jto remain in force, the claimant gave it the same effect as a power of attorney executed after the allowance.

In my opinion, the .pivotal point in this. case is one which has not been raised. The real and decisive question is whether when, in March, 1892, Barrow, hoping and expecting to raise a crop of sugar cane, and to make sugar therefrom at the end of the year, assigned to Milliken the government bounties which he hoped to earn , at the end of the year, there was then, at the time of the execution of the assignment, a claim in esse upon the United States, the assignment of which is stricken with nullity by section 3477, Rev. St., and whether such a transaction is within the evils intended to be remedied by the statute. One of the controlling canons in the interpretation of statutes is that the meaning of the law can be ascertained by the mischiefs which the law was enacted to remedy. If the mischiefs are ascertained, and a case arises which is not within those mischiefs, it is beyond dispute that the case is outside the operation of the law. We have clear and positive authority as to the mischiefs intended to be prevented by the act of February 26, 1853 (section 3477, Rev. St.). In Goodman v. Niblack, 102 U. S. 560, the supreme court, referring to its previous declaration on the subject in Spofford v. Kirk, 97 U. S. 489, said that these mischiefs are mainly two: (1) The danger that the rights of the government might be embarrassed by having to deal with several persons instead of one, and by the introduction of a party who was a stranger to the original transaction. (2) That, by a transfer of snch a claim against the government to one or more persons not originally interested in it, the way might be conveniently opened to such improper influences, in prosecuting the claim before the departments, the courts, or the congress, as desperate cases, when the reward is contingent on success, so often suggest. In Spofford v. Kirk, the supreme court had said that the greater of the two evils was the possible combination of interests and influences in the prosecution of claims which might have no real foundation. The statement of the mischiefs intended to be remedied is again made in Bailey v. U. S., 109 U. S. 438, 3 Sup. Ct. 272. There is a noticeable reiteration in the language of the supreme court with regard to the introduction of a party “who was a stranger to the original transaction,” and the transfer of a claim to one or more persons “not originally interested in it.”

In my opinion, it is clear that the transaction now under consideration comes under neither class of evils formulated by the supreme court. The transaction could not embarrass the government accountants, for it was never contemplated that Milliken should ever present any claim to the government as part owner or as assignee. The stipulation was that after the warrants were issued, that is to say, after the government was virtually done with the matter, Barrow was to indorse the warrants to Milliken. This could embarrass or involve the government accountants in no manner whatever. As to the second evil, which the supreme court says is the greater of the two, congress enacts a public statute to promote the production of sugar by the offer of a fixed public bounty, the payment of which is provided for in advance by regulations which are to apply to all who may earn the bounty. A person desiring to avail himself of the offer, but having no money to engage upon the enterprise, goes to another, and, upon obtaining from him the requisite means, assigns to him, as security for reimbursement, the bounty which he hopes to earn. Can this transaction be said to be the transferring or parceling of an existing debt against the United States to a stranger to the original transaction or to one not originally interested in it? Can it be said that such a transaction, entered into for the purpose of doing a thing which the government wishes to be done and encourages bv the offer of its bounty, is one of the dangerous bargains from which the act of 1853, as its main object, intended to protect the departments, the congress, and the courts? In my opinion, it undoubtedly is not snch a bargain. If a man without means, wishing to endeavor to earn the sugar bounty, goes to another who has the necessary resources, and enters into a partnership with him to carry on the enterprise, no one would claim that the transaction was in any manner obnoxious to section 3477, Rev. St. What different principle arises, if, instead of entering into such a partnership, one should borrow from another the necessary funds to carry out a lawful purpose, which the government encourages by the offer of a public bounty? See Calder v. Henderson, 4 C. C. A. 584, 54 Fed. 806. In my judgment, there is an obvious difference between a case where an existing debt against the .government is transferred to a stranger to the transaction, and another case where, at the very inception and origin of the transaction, one party assigns to another the contingent profits he hopes to make from a lawful enterprise, promoted by government aid, the carrying on of which enterprise being only made possible by the loan of the assignee’s money to the assignor. In March, 1892, did Barrow have “a claim upon the United States,” within the intendment of section 3477, Rev. St.? He might never have made a single hogshead or pound of sugar. What he had in March, 1892, was the hope of making sugar, and thereby earning the bounty at the end of the year. I make the following extract from the syllabus in the case of Hobbs v. McLean, 117 U. S. 567, 6 Sup. Ct. 870:

“A., having contracted with the United States to furnish supplies of wood and hay, * * * entered into partnership with B.t and G. for the purpose of executing the contract. A. was to furnish half the capital, B. and G. one-fourth each, and profits and losses were to be divided on that basis; but, in fact, the capital was furnished by B. and O. A. delivered the wood according to contract, but failed to deliver the hay, and, payment being refused, he brought suit to recover the contract price of the wood. In this suit B. and ,C. each was a witness on behalf of A., and each testified that he had ‘no interest, direct or indirect, in the claim,’ except as creditor of A., holding his note. Pending the suit, A. became bankrupt, and then died. His administratrix was admitted to prosecuto the suit, but, before entry of final judgment, his assignee in bankruptcy was substituted in his place. Pinal judgment was then rendered in favor of the assignee, and the amount of the judgment was paid to him. B. and O., as surviving partners, then filed a bill in equity against the assignee and the attorneys to recover their shares in the partnership property. Held, that the interests of B. and O. in the partnership were not affected by the fact that the contract under which they claimed was not made and attested by witnesses after the issue of a warrant for payment, as required by Rev. St. § 3477; that they were not affected by the provisions of section 3737, Rev. St.; that a transfer of a contract with the United States shall cause an annulment of the contract so far as the United States are concerned.”

In that case the supreme court said:

“What is a ‘claim against the United States’ is well understood. It is a right to demand money 'from the United States. Peck acquired no claim, in any sense, until after he had made and performed, wholly or in part,' his contract with the United States. Section 3477, it is clear, only refers to claims against the United States which can be presented by the. claimant to some department or officer of the United States for payment or may be prosecuted in the court of claims. The section simply forbids the assignment of such claims before .their allowance.”

It is therefore perfectly clear that in March, 1892, Barrow had no “claim upon the United States,” within the intendment and prohibition of section 3477, Rev. St.

I reiterate that the act of 1853 was not intended to protect claimants. There is nothing contained in it which was intended to assist a claimant in resisting the enforcement of his contracts. When, as in Spoffiord v. Kirk, the court refused to compel the claimant to carry out his agreement, it was only because this had to be done in order to give the government the protection which was the sole object of the enactment of the statute. Katural justice plainly requires that such an agreement as the one under consideration should be enforced, unless there be some special prohibition. I find that no such prohibition exists in this case. Doubtless Barrow would in good faith have carried out the agreement, and this case would never have arisen but for the fact of Ms supervening insolvency. In Ellett v. Butt, 1 Woods, 218, Fed. Cas. No. 4,384, cited by complainant’s counsel, the court cited Justice Story’s language in Mitchell v. Winslow, 2 Story, 631, Fed. Cas. No. 9,673:

“It seems to me a clear resalt of all the authorities that whenever the parties, by their contract, intended to create a positive lien or charge, either upon real or personal property, whether then owned by the assignor or contractor or not, or, if personal property, whether it is then in esse or not, it attaches as a lien in equity or charge upon particular property as soon as the assignor or contractor acquires a title thereto,” etc.

Ellett v. Butt was affirmed in 19 Wall. 544.

The Civil Code of Louisiana says:

“Art. 2450. A sale is sometimes made of a thing to come; as of what shall accrue from an estate, of animals yet unborn, or such like other things, although not yet existing.

“Art. 2451. It also happens sometimes that an uncertain hope is sold; as the fisher sells a haul of his net before he throws it; and although lie should catch nothing, the sale still exists, because it was the hope that was sold, together with the right to have what might be caught.”

A hope or expectation of gain or profit in some enterprise may form the object of a contract of sale. Slidell v. McCoy’s Ex’r, 15 La. 340; Dobard v. Bayhi, 36 La. Ann. 136. That equity, in the absence of a special prohibition, will enforce such an agreement as the one under consideration, is perfectly clear. See Spofford v. Kirk, 97 U. S. 488, where the question was passed upon. In Re Clarke, 36 Ch. Div. 354, cited by complainant’s counsel, Bowen, L. J., quoted approvingly the language of the court in Holroyd v. Marshall, 10 H. L. Cas. 191, as follows:

“If a vendor or mortgagor agrees to sell or mortgage property, real or personal, of which he is not possessed at the time, and he receives the consideration for the contract, and afterwards becomes possessed of property answering the description in the contract, there is no doubt that a court of equity would compel him to perform the contract, and that the contract would in equity transfer the beneficial interest to the mortgagee or purchaser immediately on the property being acquired.”

See, also, Tailby’s Case, 13 App. Cas. 534, cited by complainant’s counsel.

But, notwithstanding my views of the law as above expressed, it' does not follow that the complainant is entitled to all the relief he prays for. The bounty warrants in dispute amount to $6,176.49. The amount for which Barrow remained indebted to Millilcen for the crop of 1892 is less than the amount of the checks. The assignment of the eventual bounty was clearly and expressly made to secure the payment of the advances for 1892, and no reasonable implication arising in tbis case could extend it to the securing of any antecedent indebtedness of Barrow to Milliken. Nor is it contended that it should be so extended. But in the act of mortgage of March 14, 1892, a clause is contained giving the complainant the right to apply the proceeds of sale of the crop of 1892 to any indebtedness which might then be due to the complainant by Barrow on open account; it being stipulated that such imputation would not lessen or impair the indebtedness evidenced by the act of mortgage of March 14, 1892. At the time of the execution of this act, Barrow was already indebted'to Milliken for advances made prior to March 14, 1892. The contention is that Milliken had the right, under the clause just mentioned, to take the proceeds of the crop of 1892, and 'apply them to the indebtedness antecedent to the act of mortgage of March 14, 1892. The result would be to leave this act of mortgage in force for an amount sufficient to cover all the bounty warrants in dispute. It is clear that, in order to sustain this contention, it must appear that the complainant made the imputation. It is not claimed that there was any express imputation, and the matter is submitted on the inferences to be drawn from the manner in which the accounts between complainant and Barrow were kept. I find the inferences to be strongly against complainant’s contention on this point. Those accounts contain no indication whatever of any intention to malee a special imputation. The indebtedness, from the inception of the transactions between complainant and Barrow, long prior to the mortgage of March 14, 1892, is treated as one continuous indebtedness. The account begins with a charge for balance of account on February 18, 1891, — evidently the balance for the advances of 1890. Another balance is drawn on March 9, 1892, and a note appears at the foot of the account that the uncollected bounty claims, (for 1891), when collected, “are to be credited to this account.” The balance drawn March 9, 1892, is charged on March 10, 1892, being the total indebtedness on all antecedent transactions to that date. To this balance are added, on the debit side, all the advances of 1892. On the credit side, appear the entries for the proceeds of the sale of the crop of 1892, without any indication of an intention to make a special imputation of the amounts. A final balance is drawn on January 21, 1893, which is the whole amount due by Barrow on all the transactions. At the foot of the last account, appears a note that the bounty cláims for 1892 (the warrants for which are in dispute in this case) “will be credited to this account when received.” Under such circumstances, it is perfectly clear that there was no special imputation. When complainant simply entered on the credit side of his account the proceeds of the crop of 1892, there being then on the debit side both the old and the new debts, it certainly cannot be said that the credit went to one debt rather than to the other. When it is the debtor of several debts who makes a payment and wishes to impute it, the law says that he must state the imputation, or else the law makes the imputation for Mm. If, as in tMs case, he yields to his creditor his right to impute, the creditor must state the imputation. In this case the creditor has not done so. On the contrary, the inference is irresistible that he never intended to make, and that he did not make, a special imputation. The matter is clearly one in which the imputation must be made by law. “When a factor who has made advances to a planter, and who has a mortgage upon his plantation to secure an antecedent debt, receives the crop of the planter, the proceeds of the crop must be imputed to the payment of the advances, before any part of the crop may be applied to any other obligation.” Bichardson v. Dinkgrave, 26 La. Ann. 658; Given v. Alexander, 25 La. Ann. 71; Jackson v. Lemle, 35 La. Ann. 857. “As appears from the mortgage, the advances were made to defendant in his planting operations, and were specially secured by a privilege on his crops, etc. As heretofore held, the proceeds of the crop were imputable to the privilege, and not the mortgage.” Flower v. O’Bannon, 43 La. Ann. 1046, 10 South. 376. Counsel will prepare a decree in favor of the complainant, in accordance with the views herein expressed, and submit the same to the consideration of the court.