
    PETER E. N. DECKER, Respondent, v. FRANK F. SALTSMAN and another, Administrators, Etc., Appellants.
    
      Bounties — contracts in relation to — void as against public policy — Complaint— aumnd/ment of, at trial.
    
    In August, 1864, the son of John Saltsman, the defendant’s intestate, being liable to be drafted, Saltsman entered into an agreement with the plaintiff, whereby he agreed to pay him $500, and that he, the plaintiff, should have all the county and town bounties that his son or any substitute he should procure, would be entitled to, if he, the plaintiff, would furnish a substitute for his son. The plaintiff furnished the substitute and received from the defendant $500, and the bounty which the county was then paying. Subsequently the town passed a resolution to pay $425 to certain volunteers and substitutes, among whom was the substitute furnished by plaintiff. Saltsman obtained from the town authorities $100 of this bounty, to recover which, this action was brought against him for money had and received for use of the plaintiff. Held, (1.) that no one but the substitute or his assignee was entitled to the bounty. (2.) That the claim, at the time of the agreement, was no more than a mere contingent possibility, not coupled with an interest, and hence incapable of being sold and assigned. (3.) That the agreement between the plaintiff and Saltsman, in so far as it related to bounties thereafter to be voted and offered, was void as against public policy. (4.) That the plaintiff was not entitled to recover.
    The complaint was for money had and received by the defendant, to the plaintiff’s use. At the trial, plaintiff was allowed to prove an assignment from the substitute, of his claim to the bounty. Held, that the evidence was inadmissible, as it tended to show a new and independent- cause of action not set out in the complaint.
    
      Barber v. Marble (2 N. Y. S. C. R., 114, and Carver v. Cheque, 46 Barb., 507) distinguished.
    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury, at the trial of the cause in the County Court of Cortland county.
    This action was originally brought in a Justice’s Court, and came to the County Court by appeal, where it was retried, and a verdict given for the plaintiff for $107. The defendant appealed to the General Term from an order denying a motion for a new trial, upon a case and exceptions, where the order was reversed and a new trial ordered. The following opinion was delivered by Parker, J., in which the facts of the case are stated:
   Parker, J.:

This action was originally brought in a Justice’s Court, and came to the County Court of Cortland county by appeal, where it was retried and a verdict given for $107 for the plaintiff. A motion was made for a new trial, upon a case and exceptions, which was denied, and, from the order denying the motion, an appeal to this court is taken.

The complaint is for money had and received by defendant, to plaintiff’s use, and the facts relied upon by plaintiff are as follows:

In August, 1864, the defendant’s son being liable to be drafted, under the call of the President for 500,000 men, the defendant entered into an agreement with the plaintiff, whereby he agreed to pay him $500, and that he (the plaintiff) should have all the county and town bounties that his son, or any substitute he should procure, would be entitled to, if he (the plaintiff) would furnish and put into the service a substitute for his son, which would clear him from both the United States and the State militia draft. The plaintiff did furnish the substitute for three years’ service, or during the war, who was regularly enrolled, and was credited to the town of Virgil, in the county of Cortland, where the defendant and his son resided. The defendant paid the plaintiff the $500, and the plaintiff obtained the county bounty of $500, which was then being paid for volunteers and substitutes. Subsequently, and on the 10th of September, 1864, the town of Virgil, at a special town meeting, passed the following resolution :

Resoloed, That we pay the sum of $425 to each volunteer and substitute who have or shall enlist, and be credited to the town of Virgil, upon the quota of said town, under the last call of the President for 500,000 men, and who have or shall be mustered into the United States service.

On the 10th of November following, the defendant presented to the town board, a claim “ for $100 balance on town bounty for three years’ man, furnished as a substitute,” which claim was paid out of the moneys voted on the tenth day of September, as above stated. The plaintiff, claiming that he was entitled to the town bounty, afterward demanded the $100 of the defendant, and on his refusal to pay it over to him, brought this suit.

Neither of the parties to this action had any claim whatever upon this town bounty; their arrangement was not, in any respect, based upon the faith of it. It had not, at the time of such arrangement been voted, nor, so far as appears, even contemplated. By the terms and spirit of the resolution, it was provided for the volunteer or substitute who had enlisted or should enlist, and be credited to the town. No one but West, the substitute, or his assignee, therefore, was entitled to it.

One hundred dollars of this bounty thus belonging to West, the defendant obtained from the town authorities. Granting that the terms and intent even of the agreement between the parties, included this among the bounties which the defendant agreed the plaintiff should have, the question arises, what is the effect of such agreement in regard to the bounty in question %

Manifestly, it did not confer upon the plaintiff any present or prospective right to that bounty—both because the bounty did not, when created, become the property of the defendant, and because if it had, it being at the time of the arrangement no existing right or property, but a mere contingent possibility, not coupled with an interest, it was incapable of being sold. And not only was there no property in the bounty transferred to the plaintiff, but the agreement did not, and could not operate to bind the defendant to pay over the moneys received by him from the town authorities, on account of the bounties. Even if the agreement can be construed to intend such effect, still I think what Judge Co wen said, in Munsell v. Lewis correct, when applied to parties situated as these were. After adverting to the proposition, that, although a man cannot assign moneys to be recovered for a personal tort “eonomine” yet he may bind himself to pay them when received by him. He says: “ But I deny that a man may traffic even to that extent in the charity of his neighbors or the prospective bounty of his government.”

Without questioning the modified doctrine held in Carver v. Creque, that where a recruit enlisted in anticipation of the bounty then about to be voted, and in the expectation that it would be realized by him, he had an equitable right to it, as subsequently voted; which right he could sell and transfer before the vote was taken, so that when the proceedings ripened into a legal claim in his favor against the town for the amount of the bounty, it rested as such in the assignee. Still I think that, as. between these parties, both outsiders, having no connection with or relation to, the bounty, either as being the persons for whom it was intended, or assignees or transferrees of such persons, the more stringent doctrine of Judge Oowen applicable.

A contract between such persons, that as between the two, one shall be entitled to the bounty, if granted, to the exclusion of the other, must be entirely nugatory; for besides the objection that neither will have any interest as is known to each, in the bounty— the subject-matter of the contract—if granted, it is against public policy to permit such gambling contracts to be made between outsiders, in reference to soldiers’ bounties thereafter to be voted and offered, not only as tending to corrupt influences in procuring them to be offered, but also as tending to deprive the persons for whom they were intended, of the due benefit of them. The contract, as claimed by the plaintiff, appropriates the then existing and all prospective bounties, offered and to be offered to the soldier who should enlist, and which then belonged or would belong to West, the substitute, by an agreement of the parties, to the plaintiff. It does not contemplate a purchase by defendant from West, of the bounty, for the purpose of handing it over to plaintiff, but proceeds upon the idea of an independent appropriation of it by these parties, without further right to it than should accrue to them, or one of them, upon its being voted. It involves, if carried out, a palpable invasion of the soldiers’ rights, and perversion of the objects of those who should vote the bounty. Both because the contract is against public policy, and because the subject-matter of it is not capable of being asssigned, nor made the subject of an agreement to assign, no cause of action was shown against the defendant.

In the language of Judge Cowes, in Munsell v. Lewis (supra), “A simple expectancy in which the assignor has no interest and which is unpurchasable, can neither be assigned nor could a contract for future assignment, be valid. A mere jus preGa/rvum, a right resting in courtesy, is no more a matter of bargain than the virtue from which it emanates.”

The order appealed from should be reversed, and a new trial in the County Court granted, with costs to abide the event.

In March, 1869, at the trial of the cause in the County Court, an order was made, allowing the plaintiff to amend the complaint, by inserting “ such averments as are necessary to support the proof that the plaintiff, before the commencement of this action, purchased and took an assignment of the bounty money.”

The General Term, in July, 1869, reversed this order.

In September, 1870, the case was again tried in the County Court, and a verdict rendered for the plaintiff, for $138.50.

In November, 1871, the General Term reversed the judgment and ordered a new trial, on the ground that there was no privity of contract shown between the plaintiff or his assignee and the defendant, as to the money received by the defendant from the town.

In March, 1872, the case was again tried, and a verdict rendered for the plaintiff, for $148.42.

At this trial, the plaintiff put in evidence a written assignment from West, of his claim to the bounty, and also introduced evidence to show that defendant “ agreed that if he drew any of the money that the substitute would be entitled to, he would pay it over.”

The original defendant, John Saltsman, died March 8, 1872, and, in July, 1872, an order was made continuing the action in the name and on behalf of the present defendants, administrators of John Saltsman, deceased.

M. M. Waters, for the appellant.

Ballard & Warren, for the respondent.

Bookes, J.:

This action originated in Justice’s Court, and came into the County Court of Cortland county, by appeal, in which latter court it has been three times tried. It appears from the opinion of Mr. Justice Parker, that a new trial was granted after the first trial in the County Court, on the ground that the plaintiff showed no right or title to the money claimed by him in the action. He held, first, that there was no privity of contract shown between the parties ; second, that the claim, at the time of the alleged agreement with the defendant, was no more than a mere contingent possibility, not coupled with an interest, and hence was incapable of being sold and transferred; and third, that the alleged agreement between the parties, was against public policy, and void. This opinion was adopted by the court and became the law of the case, as applicable to the facts proved on the first trial; and, doubtless, it controlled the decision after the second trial. To the decision of the court thus pronounced, at two General Terms, we owe respectful obedience.

Unless, therefore, the case now before us, is different from that considered by Mr. Justice Parker, in his opinion, we must abide by the conclusions there declared. The only difference claimed to exist between the case now before us, and that formerly before the court, is this: that an assignment of the claim is now proved, from West to the plaintiff. On the former trial (the first one) this transfer was not shown ; and it is supposed by the plaintiff’s counsel, that this evidence relieves the case from the difficulties in the way of a recovery, stated by Mr. Justice Parker. But here arises a question, raised by the objection to this evidence. The complaint is, simply, for money had and received by the defendant to plaintiff’s use. There is no allegation, in the complaint, that the claim originally belonged to West, and that he sold and transferred it to the plaintiff. The plaintiff does not claim, in the complaint, as the assignee of West. If he claimed as the assignee of West, he should have alleged a cause of action by West against the defendant, and a transfer thereof by West to himself. The complaint contains no such averments, but is a simple complaint for money had and received. Under the complaint, it was not competent for the plaintiff to make a case as assignee, through a sale and transfer from West to himself, of the cause of action.

Were this a mere variance between the pleading and the proof, an amendment might have been allowed in the court below, and might, doubtless, yet be allowed by this court on the appeal, to meet and answer the objection. But it is more than a mere variance between the pleading and the proof. The evidence tended to show an independent and different cause of action from that stated in the complaint; a cause of action in favor of West assigned to the plaintiff; not a cause of action in favor of the plaintiff for money had and received to his use. The objection was distinctly taken, that the evidence was inadmissible under the complaint. There was no averment that the plaintiff claimed the money as assignee, and the evidence of the assignment by West to him, was improperly received.

Nor can its introduction be deemed immaterial and harmless. The judge laid great stress on this evidence in his charge to the jury; indeed, he gave the jury to understand, that without evidence of a transfer of the claim by West, to the plaintiff, there could be no recovery. It seems very plain, that on the complaint which presents a claim merely “for money which defendant had of plaintiff for defendants own use ” (this is the language of the pleading), the plaintiff cannot be allowed to recover on an assigned demand. The recovery on a claim, assigned by West to the plaintiff, was unauthorized in this case. This difficulty stands directly in the way of a recovery in this action, if it be necessary to show a transfer of the claim from West to the plaintiff. This' position presupposes that West, the substitute, was entitled to the bounty money, $100 of which, the defendant had obtained. So this court held. Judge Parker says: “No one but West, the substitute, or his assignee, was entitled to it. One hundred dollars of this bounty, thus belonging to West, the defendant obtained from the town authorities.” It follows, therefore, that the plaintiff must base his action on a transfer of the claim from West to himself. This, he omitted to do. No such right of action is stated or . suggested in the complaint.

We are cited to the case of Barber v. Marble, as an authority in favor of allowing an amendment to meet the difficulty above considered. That case differs from this in many, of its facts; one of which is (and this • is a very important one), that the case as made on the evidence, was substantially embraced within the. issues presented by the pleadings. In this view, of course, an amendment was properly allowed to conform the pleading to the. facts proved. It was not introducing a new and different cause of action. And, here again we are met by the former decision of this court, in this case, reviewing an order of the county court, which allowed the precise amendment now desired. That decision, made, at a recent term of this court, in this case, must now be observed. On what ground that decision was made, we are uninformed, as no opinion was written; but we must, I think, infer that the order was reversed on the ground that an amendment of the complaint, setting up a new cause of action, was improper at that stage of the case.

Second. But according to the opinion of Mr. Justice Parker, which, having been adopted by this court, as above stated, must now be accepted as the law of this case, there are other reasons why the plaintiff cannot recover in this action. It was decided in this case on the former appeal, that the plaintiff could not recover on the agreement made between the plaintiff and defendant, to the effect that the former should have all the bounty moneys to which West, the substitute, should be entitled. Mr. Justice Parker says: “ Granting that the .terms and intent of the agreement between the parties, included this among the bounties which the defendant agreed the plaintiff should have, the question arises, what is the effect of such agreement, in regard to the bounty in question ? ” He then proceeds to consider this question at length, and comes to the conclusion stated in the former part of this opinion, to wit: that the p.1 aim at the time of the alleged agreement, was a mere contingent possibility, not coupled with an interest, and hence was incapable of being sold; also, that the alleged agreement was against public policy, and void. Those conclusions we do not now propose to re-examine, inasmuch as they have already received the sanction of this court at two General Terms, Even were we disposed to question the soundness of these conclusions, the concurrence in opinion by those learned judges who then composed the court, should stand as against our own on this subsequent presentation of the same case. It should be added here, that some of the views of the court, as expressed in the opinion of Mr. Justice Parker, are supported by the more recent decision in Butterworth v. Gould, and in Osby v. Conant.

It seems, therefore, that the plaintiff failed to establish a cause of action, and the County Court should have directed judgment for the defendant.

Judgment reversed, new trial ordered, costs to abide the event.

Miller, P. J., and Boardman, J., concurred.

Judgment reversed, new trial ordered, costs to abide the event. 
      
       1st Parsons on Contracts, 523; 1st Pet., 193-213.
     
      
       4 Hill, 641, 642.
     
      
       46 Barb., 507; affirmed, 48 N. Y., 385.
     
      
       30 Barb., 389; 18 How., 506, on p. 508.
     
      
       2 N. Y. S. C. Rep., 114.
     
      
       41 N. Y., 450.
     
      
       5 Lans., 310.
     