Conde v. York

In September, 1889, Witherby & Gaffney entered into a contract with the government of the United States to construct certain buildings at Sackett's Harbor, N. Y. Thereafter they purchased from York & Starkweather lumber and materials, which were used in the construction of the buildings, and on March 27, 1890, were indebted on account of these materials in the sum of more than $3,000. Being so indebted, Witherby & Gaffney on that date executed and delivered to York & Starkweather an instrument in writing, as follows:

'Whereas, we have a contract with the United States government for the construction of buildings and officers' quarters at Madison Barracks, Sackett's Harbor, Jefferson county, N. Y.

'And whereas, we are indebted to York & Starkweather, of Watertown, N. Y., in the sum of three thousand dollars and more, on account of materials furnished us by them, that were used in said buildings and quarters.

'And whereas, there will be due and payable to us, on account of our work, & c., from the government, considerable sums of money before and on the completion of our said work:

'Now, therefore, of the moneys due and to become due us from the said government, we do hereby, for value received, assign and transfer to said York & Starkweather the sum of three thousand dollars, and do hereby authorize, empower, request, and direct Lieutenant J. E. Macklin, R. Q. M. Eleventh infantry, U.S. A., through whom payments are made for such construction, to pay to said York & Starkweather, on our account, for such construction, the full sum of three thousand dollars, as follows: First, $500 from the next estimate and payment due or to become due us, and the sume of $2,500 on the completion of said work by us, and when the balance of our contract with the government becomes due and payable to us.'

On the 7th of April, Witherby & Gaffney paid York & Starkweather, $500, but no further payment was made by them. On May 15, 1890, Lieut. Macklin, the disbursing agent of the United States government at Sackett's Harbor, gave a draft on the treasury to the amount of $4,400 to Witherby & Gaffney, which was turned over by them on that day to Conde & Streeter. Before Conde & Streeter received this draft, they had been fully notified of the paper delivered to York & Starkweather, and, while the draft was in their hands, York & Starkweather demanded $2,500 thereof from them, which they refused to pay, or any part thereof. Conde & Streeter asserted a prior right to the draft and moneys in question by virtue of an alleged oral agreement with Witherby & Gaffney to secure the payment of certain notes upon which they were liable as indorsers, and for individual claims they held against them. Conde was one of the sureties on Witherby & Gaffney's bond to the government, and it seems to be onceded that Witherby & Gaffney obtained the money on Conde & Streeter's accommodation indorsements for the purpose of enabling them to carry on the work under the contract. Conde & Streeter applied the money to pay notes to the amount of $3,200 which they had indorsed, and individual claims to the amount of $600, and about $600 was returned to Witherby & Gaffney.

April 16, 1890, Witherby & Gaffney executed to Conde & Streeter an agreement by which they promised to pay off and discharge, from the money to be received by them from the government, certain notes indorsed by Conde & Streeter, and certain individual indebtedness held by them against Witherby & Gaffney. On April 18th, Witherby & Gaffney made a written assignment to Conde & Streeter of sufficient of the money in question to pay the notes and claims mentioned, in these words:

'That there may be no misunderstanding about the intention of the foregoing agreement, we hereby assign, for value received, to John C. Streeter and Wm. W. Conde, sufficient of the moneys coming to us from Lieut. Macklin, R. Q. M., to pay the claims as specified in the aforegoing agreement.'

York & Starkweather brought suit against Conde & Streeter in the supreme court of New York for the county of Jefferson. Two defenses were set up by Conde & Streeter, the second of which was 'that the money, claim, and property claimed by the plaintiffs in this action to have been assigned to them by Witherby & Gaffney, at the time of the pretended assignment thereof, constituted and was a claim against the United States government, which had not been allowed, or the amount due thereon ascertained, or the warrant issued for the payment thereof; and that the pretended assignment thereof does not recite the warrant for payment issued by the United States, and is not acknowledged by the person making the same before an officer having authority to take acknowledgments of deeds, and is not certified by such officer; and that said pretended assignment is in violation of the laws of the United States and of the state of New York; and that the plaintiffs never derived any interest in the said contract with the United States by virtue of the said pretended assignment or otherwise, and are not the real parties in interest in this action, and ought not therefore to maintain the same; that said Witherby & Gaffney never transferred any interest in the said contract to the said plaintiffs.'

The trial resulted in a verdict in favor of York & Starkweather, upon which judgment was entered, which was affirmed by the general term, and that judgment affirmed by the court of appeals. York v. Conde, 147 N. Y. 486, 42 N. E. 193. A writ of error was then allowed from this court.

Elon R. Brown, for plaintiffs in error.

Henry Purcell, for defendants in error.

Mr. Chief Justice FULLER, after stating the facts in the foregoing language, delivered the opinion of the court.