
    Landon A. Thomas and Frank E. Fleming, Composing the Firm of Fleming, Thomas & Co., Appellants, v. Charles Schumacher and Others, Respondents.
    
      Assignment of a “balance on account”—when it transfers the fund thereafter to be realized—“bills of sale of personalty” defined—practice where equitable relief is asked by one whose remedy is at law.
    
    Where a shipper of cotton makes an assignment of “all moneys due” him — “ balance on account" •— by bankers in New York, who act as his agents in the sale of bills of exchange drawn against cotton shipped by him to England, and on the same day draws an order upon the bankers in favor of such assignee for the “balance due us on account,” such an assignment, although there is at the time no sum standing to the credit of the assignor in the bankers’ account with ’him, constitutes a valid transfer by the assignor of an amount to be represented by the proceeds, thereafter to be realized, from bills of exchange drawn by the shipper upon his consignees and delivered to the bankers with' the understanding that they were to be sold and the proceeds to be placed to the credit of the shipper, although such bills of exchange are not as yet sold.
    An assignment, executed in Georgia by a citizen of that State, of a fund .in the hands of his agents in. New York, does not come within the meaning of a statute of Georgia providing that a “bill of sale of personalty ” shall be void unless it is filed; the statute in question refers to transfers of tangible personal property located within the State of Georgia and not to transfers of choses in action.
    The fact that the plaintiff in an action in equity has demanded in his complaint the wrong relief,, or relief to which he is not entitled, does-not justify the court in dismissing the complaint where the facts show that he is entitled to recover damages -at law.
    If tne case is not one properly triable in equity, it should be transferred to a term wheie it can be tried before a jury.
    
      Appeal by the--plaintiffs, Landon A. Thomas and Frank E. Fleming, composing the firm of Fleming, Thomas & Co., from a judgment of the Supreme Court in favor of the defendants,. entered in.the office of the clerk of the county of Hew .York on the ■ 20tll day of June/1896, upon the decision of. the court rendered' after a trial' at the Hew York Special Term dismissing ■ the complaint upon the merits. '
    
      Howard S. Gans, for the appellants. '
    
      George W:Seligman, for the respondents.
   Ingraham, J.:

On. the 7th day of December, 1891, one Ernst, a resident of the . State- of Georgia and doing’ business: there undér .the name of Potter & Co., executed and delivered to the plaintiffs an instrument' as . follows : '_

“ Augusta, Ga., Dec. 7,1891.
“ For value received, we hereby transfer, and assign to Fleming, Thomas & Co. all moneys-idue us by C. Schumacher & Co., of Hew York -—balance on account. POTTER & CO.”
. On the same day Ernst delivered to the plaintiffs, who are also residents of the State of Georgia, an order on.the defendants which was as follows:
“ Augusta, Ga., Dec. 1th, 1891. - “To 0. Schumachee & Co., Hew York: ■
“ Please pay Fleming, Thomas: & Co. Or order the balance due us on account, and. oblige. - POTTER & CO.”

The defendants, a firm of bankers doing business in the city of " Héw York, were correspondents of- Ernst,- and had been in the habit of acting as his agents in Héw York for the sale of bills of exchange drawn by Ernst representing cotton shipped by him to England, to which bills of exchange were annexed bills of lading. . of the cotton. On December 1, 1891, at the time these instruments-were executed and delivered, the account between .Ernst and - thé defendants showed that Ernst was indebted to-the defendants in a sum exceeding $10,000.' The defendants, however, held drafts ' drawn by Ernst upon cotton shipped by him .to Europe,, with the . bills of lading for such shipments, to an amount largely exceeding the amount of such indebtedness, which bills of lading had been sent by Ernst to the defendants for sale by the defendants; and such drafts, with bills of lading annexed, were held by the defendants as security for the advances made hy the defendants to Ernst,, which, at the time of this transfer, as before stated, had exceeded the credits on the books of the defendants by upwards of $10,000. The defendants subsequently sold these drafts with the bills of lading annexed, and, upon the final settlement of the account, it appeared that Ernst would have been entitled to receive from the defendants upwards of $5,000.

The first question presented on this appeal is whether these two instruments, executed by Ernst and delivered to the plaintiffs on the 7th day of December, 1891, were sufficient to transfer to the plaintiffs the right to receive the balance of the account between Ernst and he defendants when the drafts were sold and Ernst became entitled to the credit. Let us examine for one moment the relation that existed between the defendants and Ernst at the time these transfers were made. What right had Ernst as against the defendants at ■that time ? Ernst had transmitted to the defendants drafts drawn upon persons in Europe. Annexed to those drafts, and as security for their payment, were bills of lading of merchandise shipped by Ernst to the drawee of the drafts. The defendants held these drafts as agents of Ernst for sale. The proceeds realized upon the sale of the drafts were to be received by the defendants and credited to Ernst’s account. The method by which this business was done was as follows : 'When the bills of lading for cotton shipped by Ernst were presented to the defendants in Hew York what appears to have been the amount paid for the cotton shipped would be paid by the defendants and charged to Ernst. Ernst would then draw bills of exchange upon the consignee of the cotton and send such bills of exchange to the defendants, whereupon the defendants would annex to such bills of exchange the proper, bills of lading, sell the bills of exchange to bankers in Hew York dealing in foreign bills and credit the proceeds to Ernst. Thus, the defendants made advances to Ernst to enable him to pay for cotton shipped, receiving the bills of lading for such cotton as security, and then, acting as agents for Ernst, annexing to bills of exchange, drawn by Ernst upon the consignees of the cotton, the bills of lading so received, would sell such bills of exchange and credit the proceeds thereof to Ernst in his account- with the defendants.

How it is quite clear that the parties to this arrangement understood.that the defendants were in .all instances'.to sell this exchange and credit Ernst with the proceeds. "While technically the legal title to the cotton represented by the bills of lading was in Ernst before as Well as, after the sale of the drafts to which such bills, of lading were annexed,, practically these bills of lading were in the hands of the defendants with the intention that they should "be annexed to bills of exchange and sold for the-account of Ernst; the proceeds to be applied by the defendants on account of the advances that they had made, the balance of the proceeds of such sale to be payable'to Ernst. ; We are not now considering the legal right that the defendants would have had in a controversy between themselves and Ernst,' . which would depend upon the condition of the account between them. The defendants, as to this balance due, are mere stakeholders, and we are 'considering the legal effect of an instrument by which Ernst attempted to transfer something to the plaintiff, and we must determine what that instrument, considering the circumstances surrounding the transaction, transferred, and what the parties intended should be the legal effect of the transfer.

One bit of evidence of the defendants seems, to be important in ■determining what was intended by this transfer. The defendant Schumacher testified: “ And in this connection we kept a running-account with Rotter & Go. (Ernst),; going, over- a- number of years. The-balance seldom was in their favor. I can- hardly remember the time when it was.” 1' Thus, it appears that, upon a consideration of the account and of- the way the business was transacted, if credits .were only given to Ernst when the -bills of exchange were sold, there never was during the time- the business was- continued a sum of money to the credit of Ernst. But if Ernst was credited with the ' bills of exchange drawn on the consignees of the cotton at or as of the time when they were delivered to defendants for sale, then it would be quite clear that, there would be a. balance to the. credit -of Ernst. The testimony shows -that after so- crediting such bills of exchange in the hands of the defendants at the time of. the execution of this transfer,. which bills they subsequently sold, and the proceeds of which they received, there would be a balance due to Ernst from the defendant. How, what was it that this instrument, as between these plaintiffs and Ernst, transferred ? Did the parties intend to transfer only the amount due upon the books of the defendants, which amount was arrived at by crediting to Ernst the money actually received by the defendants" upon ■ the bills of exchange ? The evidence of the defendants first shows that there was seldom if ever any such balance, and if the parties intended to transfer anything by the instrument it could not have been such a balance. Did Ernst and these plaintiffs intend or understand, when this transfer was executed and delivered, that what was to be transferred was the sum of money that would be due from the defendants to Ernst when the defendants had complied with their agreements, sold the bills of exchange and had credited Ernst with the proceeds thereof, treating such bills of exchange as credits to which Ernst was then entitled? As before stated, neither Ernst nor the defendants treated these bills of lading, or drafts to which the bills of lading were attached, as the property of Ernst, to be held by the defendants upon Ernst’s order; but, on the contrary, it is clear that the defendants had the right to dispose of them for Ernst’s benefit, and that it was the jn'oceeds, after paying Ernst’s indebtedness to them, to which Ernst.was entitled. In considering what he was transferring to the plaintiffs, Ernst.evidently looked at. this account between himself and the defendants as though the defendants were to credit him with the bills of exchange when they were received by the defendants on Ernst’s account, instead of crediting Ernst with the amount received after the sale of such bills of exchange; and it was the balance that would result from crediting-him with the amount of the bills of exchange, when the bills were received by defendants for sale, which, it is quite evident, he intended to transfer to the plaintiffs. Upon the face of the instrument, and considering the methods by which the business between Ernst and the defendants was done, the intention of Ernst is apparent. What is there then to prevent us from giving effect to it? Hothingj except that technically, according to the method of bookkeeping-adopted by the defendants, there did not appear to be a balance due-to Ernst at the time of the transaction, although, in effect, considering the substance and not the form of the transaction, an indebtedness -existed, in favor of Ernst against the defendant, the correct amount not being ascertainable until a future time, and it not being payable until such future time, viz., when the bills of exchange had been actually sold and the exact amount of the proceeds of the sale ascertained. There existed, however, an obligation on behalf of these defendants to sell the bills' of exchange and to apply the balance of the proceeds over and above the amount due to the defendants for the benefit of Ernst. That obligation existed when these bills of exchange were delivered to defendants. When we consider the circumstances surrounding the transfer, and the methods by which the business between the defendants and Ernst was carried on, I think it clear that it was the intention of Ernst to transfer to the plaintiffs that obligation, or the right to enforce that obligation, as against these defendants; that the instruments were sufficient for that purpose, and that that right vested in the plaintiffs, and that, when the amount was subsequently ascertained and became due, the plaintiffs were entitled to. call upon the defendants to account to them for the sum to which Ernst was entitled. The instrument itself transfers and assigns to the plaintiffs all moneys due us by C. Schumacher &' Co. of Hew York—• balance on account.” The language, used is much broader than a mere transfer of what at that time appeared by bookkeepers’ entries to be payable from the defendants to Ernst, and, we think, is sufficiently broad to include all obligations in favor of Ernst against the defendants, and it was evidently the intention of Ernst to transfer such obligations of the defendants in his favor to the plaintiffs.

We think, therefore, that the learned court below was in error in determining that there was no obligation of the defendants in favor of Ernst at the time of the transfer. It is true that there was nothing payable from the defendants to Ernst; but as before stated, there did exist an obligation of the defendants as to these bills of exchange in the hand’s of the defendants by which Ernst was entitled to be ■credited with the amount realized therefrom, and that obligation was what it was intended to transfer and what these instruments did. transfer to the plaintiffs. While it is true that Ernst.might have had the right, before the transfer, upon tender to the defendants of the amount of the advances made by them, to have transferred back to him these bills of lading and bills of exchange, he could waive that right to demand back the possession of these instruments and could insist upon his contract or agreement with the defendants being carried out, by. which the defendants were bound to sell these bills of exchange and credit him with the proceeds thereof; and enforcing this right, there would be a sum of money which the defendants would be bound to pay to Ernst' and which would become payable upon- the receipt by tlie defendants of the proceeds of the bills of exchange. We think this position fully sustained by the authorities.- In Brill v. Tuttle (81 N. Y. 454) when the order in that case was delivered, there was nothing "due to the transferor from the defendant, but it was held that, considering the surrounding circumstances, it was the intention of the parties to transfer the fund when it should become due; and the same principle was applied in Throop Grain Cleaner Co. v. Smith (110 N. Y. 90).

Two other reasons are suggested by the learned counsel for the respondents as justifying the dismissal of this complaint. They were not passed upon by the court below, but the complaint was there dismissed upon the ground that the instruments before referred to were not sufficient to transfer to the plaintiffs any right against the defendants. We do not think that we should be justified in sustaining this dismissal upon either of these grounds.

The first is, that under a statute of the State of Georgia these transfers were void because they were not filed in that State as required by such statute. The property assigned was an obligation on the part of citizens of the State of Hew York to account to Ernst for property in their hands. We think it clear from the evidence that the transfer of such an account is not a “ bill of sale of personalty ” within the provisions of that statute. It is quite evident that the statute refers to transfers of tangible personal property located within the State, and not to the transfer of choses in action.

The defendants also take the objection that to enforce this obligation an action at law was necessary and not an action for an accounting in equity, and that the plaintiffs have a complete and adequate remedy at law against these defendants and no standing in equity to maintain this action,. H this point, however, is well taken, it would not justify a dismissal of the complaint. Upon the facts proved, the plaintiffs, if the owners of the demand against the defendants, would be entitled to a judgmentand the fact that they had demanded the wrong relief in their complaint, or demanded relief to which they would not he entitled, would not justify'the. court in dismissing the-complaint. If they brought the action to trial as an equity case,-when upon the facts alleged the plaintiffs were only entitled to a common-law judgment-,■ and the defendants.insisted that the action' should be tried before a jury, then, upon a demand that the case be sent to a jury-for trial, the court would be bound to so direct; or, if at the end of all the testimony the court. should be of the opinion that it was an action -át law and not in equity, the court could then refuse the equitable relief and send the ‘ action to be tried at the Trial Term . before a jury. There was no reason, however, why the plaintiffs should be turned out of court, under our system of practice,, because,though they alleged facts which entitled -them to relief-, they asked for the wrong relief, or brought the case on -for trial at the wrong term of the court, -

On the whole case we think that the judgment below should be reversed and a new trial ordered, with costs to the appellants to abide ■the event. ■ ■

. Patterson, Rumset, O’Brien and Parker, JJ., -concurred.

Judgment reversed,, new trial ordered, costs to appellants to abide event. '  