Opinion
September Term, 1855
D.S. Dickinson, for the appellant.
G.W. Hotchkiss, for the respondent.
The action was not brought to reclaim the property taken by the defendant, or its proceeds, but to enforce the claim and demand accruing originally to Meritt, for the unlawful detention and conversion of the goods in controversy.
Whether this cause of action was assignable, so as to enable the plaintiff to sustain the suit in his own name, is the only important question now presented. The learned judge, who delivered the opinion of the supreme court, was correct in saying that the terms of the deed were sufficiently comprehensive to embrace all the property of the assignor, and all the rights thereto appertaining. If a demand arising for a tortious conversion is assignable, I entertain no doubt that it passed by this conveyance. In The People v. Tioga Common Pleas (19 Wend., 73), this subject was discussed by Judge Cowen with his usual learning and ability; he observes, in speaking of choses in action: "That for the purposes of any sort of assignment, legal or equitable, I can nowhere find that the term has ever been carried beyond a claim due either on contract, or such whereby some special damage has arisen to the estate of the assignor." And his conclusion is, that demands arising from injuries, strictly personal, whether arising upon tort or contract, are not assignable, but that all others are. Upon the authority and reasoning of that case, and the decisions there referred to, the law may be considered as settled, that a claim to damage arising from the wrongful conversion of personal property is a chose in action that is assignable; and as such, was transferred by the trust deed to the plaintiff. In the present supreme court there is a conflict of opinion. Judge Harris and his associates concurring in the views of Judge Cowen, and Judge Brown holding that a demand of that nature is not the subject of assignment. (7 Howard, 492; 18 Barbour, 500.) If the demand was assignable, the action was properly brought in the name of the plaintiff, who had the exclusive right to recover the damages for the purposes of the trust. ( Code, §§ 111, 113.) No demand or refusal was necessary to maintain the action. By the assignment the plaintiff succeeded to all the rights of the assignor; this is a necessary consequence of the assignability of the claim, as distinguished from the property converted. (1 Selden, 344.)
The judgment of the supreme court should be affirmed.
DENIO, JOHNSON, DEAN and CRIPPEN, Js., concurred. RUGGLES, J., took no part in the decision.
This action is for taking and converting the personal property of one Meritt. Admitting that the assignment by the latter was a valid transfer of his choses in action and other personal effects that were assignable, the principal question in the case is: Did the assignment in this case transfer a right of action for taking and converting personal property? The goods were sold on an execution in favor of defendant, and by his direction. But there was no proof that defendant himself took the goods before or after the sale, or converted them, except by directing them to be sold upon the executions; and the assignment was made nearly three months afterwards. The taking and conversion were therefore complete at the time the assignment was made, and the defendant then had no interest in or control over the property.
I had supposed that a mere right of action for a tort could not be assigned, either at law or in equity, except by means of some statutory proceedings. ( Gardner v. Adams, 12 Wend., 297; People v. Tioga Common Pleas, 19 id., 76; Thurman v. Wells, 18 Barb., 500; 2 Stor. Eq., §§ 1039, 1040, g, 1048; Hall v. Robinson, 2 Comst., 293; 1 Font., 213, n. g; Willard's Eq., 462.) A cause of action arising from a tortious act will sometimes pass to the assignees of an insolvent, or to the assignees in bankruptcy. In those cases, there can be no objection on the ground of champerty and maintenance; and the criterion is whether the action is to recover damages for an injury to the property of the insolvent or bankrupt, or for a wrong personal to him. A solatium for an injury done to the person or personal feelings of the debtor cannot be assigned. But if the substantial cause of action arises from an act that diminishes or impairs his property, it passes to the assignees. ( Roseboom v. Mosher, 2 Den., 67, Bronson, C.J.; Beckham v. Drake, 2 H.L. Ca., 577; S.C., 11 M. W., 315; 8 id., 846; Rogers v. Spence, 12 Cl. Fin., 700; S.C., 13 M. W., 571; 11 id., 191; Wetherell v. Julius, 10 Com. B., 267; Stanton v. Collier, 3 Ell. Bl., 274; Milnor v. Metz, 16 Pet. R., 221; and see Gillet v. Fairchild, 4 Den., 80.) The transfer in such cases is in compliance with a statute, and is generally in invitum. But where the act is done on the mere motion of the parties, the assignment of a bare right to bring an action for a mere tort has been considered void on the ground of public policy. There is nothing in the Code which abrogates this salutary principle; indeed the question is one of right or title and not of remedy.
There are other questions in the case; but on the objection already noticed, the judgment should be reversed.
MARVIN, J., concurred in the foregoing opinion delivered by Judge Hand.
Judgment affirmed.