Burck v. Taylor/Dissent Jackson

Mr. Justice JACKSON, dissenting.

I am unable to concur in the opinion and judgment of the court in this case, and will briefly state the grounds of my dissent.

The case stands upon the bill, original and amended, and demurrer thereto. From the nature of the building contract between the state of Texas and Schnell, as well as the covenant contained in the twenty-sixth clause thereof, providing that the contract should not be assigned, in whole or in part, by the contractor without the consent in writing of the designated state officials, 'with the advice and consent of the heads of departments,' the conclusion is reached by the court that 'Schnell was incapacitated from transferring an interest therein without the consent of the state; that the admitted transfers from him to A. A. Burck and from A. A. Burck to S. B. Burck (complainant) created simply a personal obligation, which could be enforced against him alone; that the assignments and transfers with the consent of the state vested the absolute and sole interest in the contract in the defendant, Abner Taylor; that the latter took without notice of the plaintiff's claim; that by his performance of the contract he acquired the right to the entire consideration promised by the state, and assumed no liability to Schnell, and no obligation to perform any promise which Schnell made to plaintiff or plaintiff's assignor.'

I find nothing in the allegations of the bill or in the exhibits, made a part thereof, which sustains the statement that Taylor 'took without notice of the plaintiff's claim.' The bill certainly does not admit that Taylor took the transfer to himself and Babcock from A. A. Burck without notice of the previous transfer to S. B. Burck. The other conclusions involve legal and equitable propositions, which, as applied to the admitted facts of this case, are not, in may opinion, correct.

There are important allegations in the bill, and provisions in some of the contracts, made exhibits thereto and parts thereof, which are admitted by the demurrer, but which are not noticed or considered in the opinion. By the contract of January 31, 1882 (Exhibit L), Schnell assigned and set over to Charles B. Farwell, John V. Farwell, Amos C Babcock, and Abner Taylor 'an undivided three-fourths interest in said [state] contract, for the purpose that the said parties of the second part may share in any and all the profits that may arise from same, the same as the party of the first part [Schell] as their interests may appear, which is hereby agreed to be equal;' that is, the assignees collectively were interested in the three-fourths interest transferred to them. This contract further provided that the assignees were 'to furnish whatever money may be needed or necessary for the proper construction of said statehouse, or for the execution of the said contract, as the same may be required from time to time.' The sum of $13,000, which the parties acknowledged to be then due Schnell, was to be paid with interest 'whenever the sum of $50,000 shall have been realized by the sale of lands named in said (state) contract.' After the payment of that sum the contract provides 'that the said parties of the second part are to have all the remaining profits until all the money advanced as above stipulated shall be paid, with six per cent. interest thereon per annum from the time said money is advanced; and all the other profits are to be divided as the interests of the parties appear under the contract or to their heirs or assigns. It is further agreed by and between the parties hereto that Amos C. Babcock, one of the parties of the second part, shall be the trustee for the parties herein named of each part, to act as and be the trustee to receive the title to be conveyed in pursuance of the contract between the state of Texas and the said Matthias Schnell, and receipt for same to the proper officers of said state, and do all other things required of the said Schnell pertaining to the conveyance of the lands under said contract with the state of Texas or capitol building commissioners, and to hold the same, and to make such conveyances or sales of said lands, or any portion thereof, from time to time, as the parties hereto may direct.'

The state of Texas, by its proper officiais, gave its written consent to this contract of assignment, which operated to substitute Schnell and his assignees, composing a partnership under the style of Taylor, Babcock & Co., as the contractors with the state in place of the original contractor. In thus becoming the substituted contractors with the state, instead of Schnell, the members of the partnership in no way abrogated or terminated the provisions of their private contract inter sese as above set forth. It admits of no question that by the terms of this partnership contract Schnell was not required to make any advances or incur any expenditures in executing the state contract and completing the capitol building, as the four assignees of an undivided three-fourths interest of the state contract were to advance all the funds required for that purpose, and obtain their reimbursement from the sales of the lands to be received from the state in settlement for the work. It is equally clear that Schnell retained a one-fourth share of the profits that might be realized on the contract after refunding advances made by his copartners in completing the capitol building. Now, the state of Texas certainly had no concern with these private matters and agreements between the new contractors. It was not interested in, or in any way affected by, the relative or respective shares of the contractors in the profits which might be made. Neither had the state any interest in the question as to how, or among whom, such profits, if any, should be divided. These were matters to be settled among the copartners or associate contractors, and they were settled by them in the provision of their private contract, which provided that, after repaying the amount expended in constructing the state capitol, 'all the other profits are to be divided as the interests of the parties appear under the contract, or to their heirs or assigns.' It can hardly be doubted that this language permitted and provided for the assignment by either or all of the partners of his or their share in the profits, and that such assignee could equitably assert a right thereto against any person into whose hands such profits might come or be found, except a bona fide purchaser thereof for value without notice of the assignee's rights. Such an assignee of a share in the profits of the enterprise would have nothing to do with the execution of the state contract out or which profits might arise. Nor would he touch the state at any point, or in any way affect its rights, interest, or convenience. The contractor's covenant not to assign the building contract without the consent in writing of designated state officials did not extend to or cover an assignment by the contractor of a share or interest in the profits which it was expected would arise from the execution of the contract. The state had notice of the provisions of the private partnership contract, which included 'assigns' among those entitled to share in the division of the profits; and in consenting to the arrangements made by that contract it may be fairly assumed to have assented to such provisions. The right to assign a share or interest in the profits was one of the terms of the copartnership which the state accepted as contractor in the place of Schnell. In thus accepting the firm as contractor, with notice that its members had provided for their 'assigns' to share in the profits of the building contract, the state itself could not thereafter have objected to Schnell's assignment of his interest, wholly or partially, in the profits that the firm might make out of the contract, whether such assignment was made before the completion of the work or after.

Suppose the firm of Taylor, Babcock & Co., having the same copartnership articles and agreements as to how the members should share in the profits of the business, had been the original, instead of the substituted, contractors, could or would it be held that the contract with the state, or the twenty-sixth clause thereof, would operate or have the effect to prevent any member of the firm from assigning a part of his interest in the profits that might be realized in completing the state building? Such a proposition as this could not be maintained. It would be too clear for argument that the state contract with the partnership could not control the articles of copartnership as between the partners and third parties in respect to what might be realized by the firm out of the contract with the state. Each partner of a firm has an undoubted right to make a valid assignment, either absolutely or as security, in the profits of a partnership. No partner owns absolutely any part of the partnership property. He cannot assign any particular part of such property, or any specific amount of the profits of the concern. But the assignment of his share, or any part thereof, in such profits, will pass such part of the profits as may remain after payment of the firm's debts and settlement of the partnership accounts. The right conferred by the assignment is an intangible thing, and can only be reduced to possession by a demand for account, and no notice of such an assignment need be given other than a demand for an account of such profits. This is the rule laid down in Wallace's Appeal, 104 Pa. St. 559, where it was held 'that a purchaser of a partner's interest, whether at private or judicial sale, acquires merely the right to demand an account from the other partners and receive a certain share of the balance remaining after the payment of the partners' debts and the adjustment of the partners' equities. This right is an intangible thing, and can only be reduced to possession by a demand for an account.' In that case it was further held that the assignee of a partner's interest was superior to the claim of general creditors, and all others claiming under the partnership, except the purchasers for value without notice.

The right of the partners, under the articles of copartnership, as well as under the general law, to make a transfer or assignment of their interest in the profits of the firm, should not be confounded with the right of the firm to make an assignment of the contract, so far as the state is concerned. In accepting the copartnership as its contractor the state did not undertake to control the ordinary rights of partners, nor abrogate their private agreement. The opinion of the court asserts the proposition and reaches the conclusion that, notwithstanding the terms of the partnership agreement, which provided that the 'assigns' of any member of the firm should be included among those who were to share in the profits of the enterprise as their interest might appear, still such an assignee could acquire no right or title to the profits as against the firm, or members thereof, into whose hands such profits might come, without the consent of the state to such assignment; and as the result of this startling proposition holds that the appellee, Taylor, who was a member of the firm, and a party to that agreement, is relieved from liability to account for profits which belong to the appellant, as the assignee of Schnell. I know of no principle or authority upon with this can be sustained.

Having retained a one-fourth interest in the profits of the building contract, Schnell, on January 31, 1882, by written contract, after reciting the contracts with the state, and with Taylor, Babcock, and the Farwells, transferred and assigned to A. A. Burck and two others, separately and severally, an undivided one-fourth part 'of all and whatever share, interest, or advantage, whether in money, lands, or otherwise, which he [said Schnell] may be entitled to have or receive under or by virtue of the contracts herein mentioned and referred to,' excepting only the $5,000 to be paid for his services as superintendent, and $13,000 coming to him out of the first $50,000 proceeds of land sales. This assignment contained the provision 'that this contract shall be binding upon and inure to the executors, administrators, heirs, and assigns of the several parties hereto respectively, and that the same shall be recognized by the parties and trustee named in the contracts herein referred to.'

This assignment to A. A. Burck was witnessed by A. C. Babcock, of the firm of Taylor, Babcock & Co., and trustee of the parties to receive and sell the lands to be acquired under the building contract. He not only witnessed the contract, but appeared before the proper officers, and proved its execution for registration. The firm of Taylor, Babcock & Co. thus had notice through one member thereof of the assignment. In addition to this, it is distinctly alleged in the amended bill that this transfer was executed by Schnell 'with the knowledge and assent of said partnership,' meaning Taylor, Babcock & Co. It is further alleged 'that, the said Matthias Schnell having assigned to the said A. A. Burck a right to one-sixteenth interest in the profits that might arise from the construction of said capitol under said contract with the state of Texas, and having made such assignment to said Burck at the time said partnership was existing, as hereinbefore alleged, with the knowledge and assent of said firm as it then existed, the right of the said A. A. Burck to have one-sixteenth of the profits that might arise from the carrying out of said contract, and to have an accounting therefor, became binding upon said firm and its assignees.'

On May 9, 1822, Schnell, by written contract, transferred his remaining interest in the contracts (consisting of his claim of $13,000, and an undivided one-sixteenth interest or share in the profits that might be realized) to Charles B. and John V. Farwell, Abner Taylor, and A. C. Babcock, 'who composed the firm of Taylor, Babcock & Co.' In respect to this assignment, which the state approved, the original petition charges 'that the said Taylor, Babcock & Co. received said assignment from Matthias Schnell of all his interest in said contract to complete said state capitol with full notice of the interest of said A. A. Burck, as hereinbefore alleged, an undivided one-half of which interest A. A. Burck subsequently transferred to plaintiff, S. B. Burck, as aforesaid; and that the said Abner Taylor had full notice of the interest of the said A. A. Burck at the time of the said transfer of Taylor, Babcock & Co. to him, the said Abner Taylor, and with full notice that by the terms of the agreement and assignment executed by and between said Matthias Schnell, of the first part, and J. M. Beardsley, James S. Drake, A. A. Burck, of the second part, that the same should be binding on and inure to the executors, administrators, heirs, or assigns of the several parties to the said contract.'

Now, after this transfer by Schnell of his interest to the firm of Taylor, Babcock & Co., what was the situation in respect to the profits that might be realized from the building contract? It was clearly this: Taylor, Babcock & Co. thereafter held and owned the three-fourths interest acquired under the partnership contract of January 31, 1882, and one-sixteenth interest derived from the assignment of May 9, 1882, aggregating thirteen-sixteenths interest in the profits, leaving the outstanding three-sixteenths assigned to A. A. Burk and others by Schnell on January 31, 1882. The stipulations of the partnership contract were in no way changed or affected by Schnell's assignment of his remaining interest to the firm of Taylor, Babcock & Co. The obligation of Taylor and his associates, Babcock and the Farwells, to furnish the money required to complete the contract was not altered or abrogated in any way, and, if the contract had been completed by Taylor, Babcock & Co., the profits realized from the sales of the lands, after refunding the expenditures made in completing the contract, would have been distributable between the parties in the proportion of thirteen-sixteenths to Taylor, Babcock & Co., one-sixteenth to A. A. Burck, and two-sixteenths to the other two assignees of Schnell.

On June 20, 1882, the firm of Taylor, Babcock & Co. transferred the building contract to Abner Taylor, which was assented to by the state, and Taylor thereby became the contractor; but in so doing he did not cease to be bound by the terms of the partnership contract under which Schnell retained his one-fourth interest in the profits, and a right to assign it, as he did. In other words, Taylor, in acquiring the shares of the members of the firm of Taylor, Babcock & Co., in no way either terminated or affected the interest of the parties holding the outstanding interests in the profits assigned by Schnell to A. A. Burck, with the knowledge and consent of both Taylor and the firm of Taylor, Babcock & Co. Nor did the transfer to Taylor by Babcock and the Farwells, as members of the firm of Taylor, Babcock & Co., in any way relieve Taylor from the provisions of the contract of January 31, 1882, which required himself and associates, other than Schnell, to furnish all the money needed to complete the building. The only effect of that transfer was simply to place Taylor in the shoes of Taylor, Babcock & Co., subjecting him to all the obligations resting upon himself and assignors, and affected by all the rights and equities which were binding upon the firm, not only in respect to the state, but as to all others interested in the result of the enterprise.

It is held, in the opinion of the courth, that this assignment by the members of the firm of Taylor, Babcock & Co. to the appellee, Taylor, with the consent of the state, vested in him the absolute and sole interest in the contract, and profits arising therefrom, and that by his completion of the contract he acquired the right to the entire consideration promised by the state, and assumed no liability to either Schnell or to others claiming under Schnell. Schnell's assignee, holding the outstanding one-sixteenth interest in the profits, was no party to that arrangement. His rights were fixed by the partnership articles, and how and upon what principle can it be maintained that Taylor's acquisition of the interest of Babcock and the Far wells in the contract, and the profits thence to arise, can cut off this outstanding interest held by Burck? By taking the assignment from his copartners, Taylor was in no was released from the obligation to furnish money and complete the contract which rested upon the firm of Taylor, Babcock & Co. and how is it, then, that by acquiring the interest of his copartners, he can terminate or extinguish the right of Schnell's assignee proviously acquired with the knowledge and consent of the firm of Taylor, Babcock & Co.? Can rights acquired with Taylor's knowledge and consent be cut off and extinguished by the private dealings between himself and partners, even though it be with the consent of the state? No such proposition can be sustained, either upon principlo or authority.

By the transfer of April 14, 1883, from A A. Burck to the complainant, S. B. Burch (Exhibit O), the latter acquired an undivided one-half interest in the one-sixteenth interest held by the former, and thereby became entitled to one thiry-second part of the profits that might arise upon the completion of the contract, and the sales of the land to be received therefor. This transfer left A. A. Burck the holder of one thirty-second interest in the profits, and thereafter, on May 27, 1884, he assigned to Abner Taylor and A. C. Babcock all his right, interest, and claim in and to the contract with the state of Texas derived from Schnell, or any interest he might have in the erection of the capitol building.

These two assignments by A. A. Burck are not, upon their faces, in conflict. They may well stand together. That to S. B. Burck was of a specific interest; that to Taylor and Babcock may be fairly construed to cover A. A. Burck's remaining interest of one thirty-second share of the profits. This last transfer does not purport to convey the one thirty-second interest previously transferred to S. B. Burck, and there is no allegation in the bill to give color to the idea that Taylor and Babcock, in taking the assignment of May 27, 1884, from A. A. Burck, supposed that they were getting a one-sixteenth interest instead of a one thirty-second interest. When that assignment was made to them, Taylor and Babcock both knew that A. A. Burck had acquired from Schnell a one-sixteenth interest in the profits, and it is somewhat significant that they accepted an assignment from him, general in its character, without specification as to the interest conveyed. It is alleged that this transfer from A. A. Burch to Taylor and Babcock did not, upon its face, purport to convey the interest previously conveyed to S. B. Burck. Upon demurrer this statement of the bill, with respect to the purport of that transfer, must be taken as true. In Campbell v. Mackay, 1 Mylne & C. 603, Lord Chancellor Cottenham laid down the rule 'that the court upon demurrer must assume the statement of the bill with respect to the purport of a deed to be true, and the demurring party is not at liberty to read the instrument itself for the purpose of disproving the statement, notwithstanding that for greater certainty as to its contents the bill expressly refers to it as being in the demurring party's possession.'

When this assignment of May 27, 1884, was made to Taylor and Babcock, the latter had ceased to be a co-contractor for the erection of the building.

The state never assented to either of these assignments by A. A. Burck. The want of that assent is held to violate the transfer to S. B. Burck, while it does not affect that made to Taylor and Babcock. In reference to these A. A. Burck assignments the bill charges: 'That for reason why your orator should not have an account or relief against him the defendant pretends that he had no notice that the said A. A. Burck assigned or transferred to your orator a one-half interest in his, the said A. A. Burck's, one-sixteenth interest in the profits that might arise from the building of said capitol contract, and that the defendant in good faith and without notice purchased from said A. A. Burck, for valuable consideration, the said Burck's onesixteenth in said profits after the said A. A. Burck had sold one-half of his said interest to your orator, and therefore refuses to account with plaintiff; whereas the truth is that the said transfer by A. A. Burck to your orator, which has been hereinbefore stated, and made a part of this bill as an exhibit, was duly authenticated for registration in the office of county clerk, and was duly recorded in the records of deeds of Travis county, Texas, on the 14th day of April 1883, and said Abner Taylor then had notice of the same; whereas the said A. A. Burck did not sell or transfer any of his said interest in said profits to said Abner Taylor until the 27th day of May, 1884.'

Suppose, as suggested in the opinion of the court, that this does not amount to anything more than an averment of constructive notice arising from the registration of the transfer, it was certainly not an admission that Taylor had no notice of that assignment. But considering the subject-matter of the interest transferred by Schnell to A. A. Burck, and by him to S. B. Burck, and the situation of the parties, the question arises whether want of a definite allegation that Taylor and Babcock had notice of the complainant's interest when they took their assignment from A. A. Burck, can in any way affect or defeat the complainant's rights according to the allegations of the bill.

The interest involved was to arise out of the sales of lands then being and thereafter to be acquired, without expense to Schnell or his assignees. To whom was an assignee of an interest in the profits under duty and obligation to give notice? The ordinary rule applicable to the transfer of debts or choses in action has no application to the case, as shown in Wallace's Appeal, 104 Pa. St. 563. The principle which would govern and control the question and the conflicting rights of complainant and Taylor and Babcock, if there is any real conflict between them, is the equitable doctrine of a bona fide purchaser for value without notice. This is a matter of defense on the part of such purchaser. There is certainly nothing on the face of either the bill or the contracts, made exhibits thereto, to indicate that Taylor or Taylor and Babcock has or can assert any such defense, and yet the court's opinion and conclusion gives Taylor the full benefit of that position, as effectually as though he had set it up by answer and established it by proof.

There is a clear distinction between choses in action and chattel or freehold interests. This distinction is pointed out in Wiltshire v. Rabbits, 14 Sim. 75, 77, in which it was held that the person who took the first assignment of an annuity charged on leaseholds was entitled to priorty over the person who took the second, notwithstanding the latter may have been beforehand with the former in giving the trustee notice of his security. The same general principle is asserted in McCreight v. Foster, 5 Ch. App. 604, 610. And in Wilmost v. Pike, 5 Hare, 14, it was distinctly held that the doctrine of notice applicable in determing the priority of changes on choses in action does not prevail as to equitable estates in land. In that case several mortgages were held to take effect with regard to interests arising out of real estate, according to the order of time at which they were respectively created, and that their priorities were not affected by the giving or failing to give notice to the party in whom the legal estate was vested.

But, even treating the interest here involved as an ordinary chose in action, no proposition is better settled than that an assignee of such a right can take only such interest as his assignor has to transfer, and will be bound by all equities binding on the latter, unless it affirmatively appears that the subsequent assignee took without notice. Davies v. Austen, 1 Ves. Jr. 247; Brashear v. West, 7 Pet. 608; Allen v. Randolph, 4 Johns. Ch. 693; McKinnie v. Rutherford, 1 Dev. & B. Eq. 14; Webster v. Wise, 1 Paige, 319; Gay v. Gay, 10 Paige, 369.

There is no allegation in the bill which can be tortured into an admission that Taylor occupies the position of a bona fide purchaser for value without notice of the interest of A. A. Burck previously conveyed to S. B. Burck. The opinion of the court goes far beyond giving Taylor the benefit of such position. It, in principle and effect, gives to the covenant against transferring the state contract a greater effect than a law or a statute could have had. How can the rule laid down by the court, that the covenant against transferring the state contract has the effect to defeat the rights of an assignee from a member of the firm of contractors, be reconciled with the principle announced in McBlair v. Gibbes, 17 How. 232, 239; Brooks v. Martin, 2 Wall. 70, 87; Railroad Co. v. Durant, 95 U.S. 576; and also in Sharp v. Taylor, 2 Phil. Ch. 801, 818? In these cases it was held that there was a distinction between enforcing an illegal or prohibited contract and the assertion of a title to funds that had been realized out of such transactions. Here the contract with the state has been completed. The state is not objecting to the assignment made by Schnell to A. A. Burck, and by A. A. Burck to S. B. Burck; and certainly Taylor, who not only had knowledge of Schnell's assignment to A. A. Burck, but is charged with having assented thereto, is not in a position to interpose an objection which even the state could not urge, in order to withhold funds that do not belong to him. What the lord chancellor said in Sharp v. Taylor, supra, is directly in point here: 'As between these two, can this supposed evasion of the law be set up as a defense by one against the otherwise clear title of the other? In this particular suit, can the one tenant in common dispute the title common to both? Can one of two partners possess himself of the property of the firm, and be permitted to retain it, if he can show that, in realizing it, some provision in some act of parliament has been violated or neglected? Can one of two partners in any import trade defeat the other by showing that there was some irregularity in passing the goods through the customhouse? The answer to this, as to the former case, will be that the transaction alleged to be illegal is completed and closed, and will not be in any manner affected by what the court is asked to do, as between the parties. Do the authorities negative this view of the case? The difference between enforcing illegal contracts and asserting title to money which has arisen from them is distinctly taken in Tenant v. Elliott, 1 Bos. & P. 3, and Farmer v. Russell, Id. 296, and recognized and approved by Sir William Grant in Thomson v. Thomson, 7 Ves. 473.'

The same principle is laid down in the recent case of Kingsbury v. Burrill (Mass.) 24 N. E. 36, where it was held that an assignment of a fractional part of a claim is good in equity where the person who it to pay raises no objection; following James v. Newton, 142 Mass. 366, 8 N. E. 122.

The present case cannot be distinguished in principle from the rule announced in Hobbs v. McLean, 117 U.S. 567, 6 Sup. Ct. 870, in which A., having contracted with the United States to furnish supplies of wood and hay to troops in Montana, entered into partnership with B. and C. for the purpose of executing the contract. A. was to furnish half the capital, B. and C. one-fourth each, and profits and losses were to be divided on that basis; but, in fact, the capital was furnished by B. and C. A. delivered the wood according to the contract, but failed to deliver the hay, and, payment being refused, he brought suit in his own name in the court of claims against the United States 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 a creditor of A., holding his note. Pending the suit, A. became bankrupt, and then died. His administratrix was admitted to prosecute the suit, but before entry of final judgment his assignee in bankruptcy was substituted in her place. Final judgment was then rendered in favor of the assignee, and the amount of the judgment was paid him. B. and C., as surviving partners, then filed a bill in equity against the assignee and the attorneys and counsel to recover their shares in the partnership property, and the court sustained their right to recover.

The attempt to draw distinctions between decisions which involve no substantial differences in principle is not only unwise, but is attended inevitably with embarrassment in the administration of the law. The cases of Arkansas Val. Smelting Co. v. Belden Min. Co., 127 U.S. 379, 8 Sup. Ct. 1308, and Delaware County Com'rs v. Diebold Safe & Lock Co., 133 U.S. 488, 10 Sup. Ct. 399, cited in the opinion of the court, fall far short of asserting the proposition that a member of the firm of Taylor, Babcock & Co. (the substituted contractors with the state) could not transfer an interest in the profits to arise out of the building contract without the consent of the state. There is a class of cases where the services to be rendered are of such a personal character that they cannot be assigned; but where is the authority that holds that where a firm is a contractor to do certain work, a member of such firm cannot assign or transfer his share of the profits to arise therefrom? I have looked in vain for such an authority.

The real question before the court upon the bill and the demurrer thereto is not whether Schnell could have assigned to A. A. Burck the right to take part in or assert any control over the construction of the state capitol, or to have recovered from the state the compensation it had promised to pay therefor, but the question is: Can Taylor retain a share of the profits which belong to Schnell by the partnership agreement, made with himself and his associates upon full consideration, a portion of which profits Schnell, 'with his knowledge and consent,' transferred to A. A. Burck, who assigned a part thereof to the complainant? Under and by what provision of the contract, described in the record, did Taylor become entitled to hold that share for his own benefit?

The bill shows that the building cost about $3,700,000; that the lands received from the state as compenation for the work, and since sold, were worth from ten to eleven million dollars, and the profits made on the transaction were between seven and eight million dollars. By the terms of the partnership contract, all the expenditures connected with the completion of the building were to be refunded, with interest, and the remaining profits were to be divided 'as the interests of the parties or their assigns might appear.' The complainant, as an 'assign,' holds title to one thirty-second interest of those profits. The bill clearly discloses his right thereto, and I fail to see upon what principle Taylor can dispute his claim, or deny the account which he seeks. To allow him to do so under the allegations in this bill, and upon the ground on which it is rested,-that the state did not assent to the complainant's acquisition of the interest he holds,-is not only a perversion of right and justice, but finds no sanction or support in either principle or authority.

Mr. Justice SHIRAS concurs in this dissent.