
    David Gurnee, Resp’t, v. Lewis H. Hutton, App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed February 8, 1892.)
    
    Equitable assignment—Orders drawn on fund.
    One B., who was doing work under contract for defendant, purchased', ahorse of plaintiff and gave him an order on defendant payable “in sums-as mentioned in contract.” This was presented to defendant without-demand for payment, and was not Accepted in writing. Held, that the-order was an equitable assignment of the fund due and to become due under the contract and its delivery bound defendant to apply the fund as-it accrued to payment of the order.
    Appeal from judgment in favor of plaintiff, entered upon verdict.
    
      Abram, A. Demarest, for app’lt; William K Oowdey, for resp’t
   Dykman, J.

On the 8th day of August, 1889, Augustus Brinkerhoff made an agreement in writing with the defendant to-construct for him a hot water heating apparatus in his residence-in Nanuet, Rockland county, for $430, to be paid as follows: Three hundred and thirty dollars to Baton, Cole & Burnham Co. thirty days after the material was purchased; twenty-five dollars to Brinkerhoff when the heater was set and the mains run in the cellar; twenty-five dollars to Brinkerhoff when the work was complete and the apparatus was set up as specified; fifty dollars toBrinkerhoff when the apparatus had been tested in first cold weather and found satisfactory.

Brinkerhoff purchased a horse of the plaintiff in this action for $125, and gave him in payment therefor an order upon the defendant in writing, of which the following is a copy:

“Nyack, October 2, 1889.
“ Mr. Louis Hutton, Jr., please pay to the order of Mr. David Gurnee the sum of one hundred and twenty-five dollars in sums as mentioned in contract for erecting hot water heater. By order of A. Brinkerhoff.”

The order was taken to the defendant and left with him a few days after it was drawn.

Brinkerhoff commenced work on the heater in September, and he says there was about fifty dollars due him under the contract, when the order was drawn. He did not complete the work, and he testified that he was prevented from so doing by the defendant, and that there was not more than twenty-five dollars worth of work left undone. He also claimed to have done fifty dollars worth of work beyond the contract, and that there was due him from the defendant on account of the contract $125.

The defendant on the contrary claimed that nothing was due to Brinkerhoff under the contract, and that he had been compelled to expend more than the contract price for the completion of the heater by reason of the failure of Brinkerhoff to perform his. agreement.

The cause was tried at the circuit and submitted to the jury by a charge which was faultless. The trial judge charged the jury that the order constituted an equitable assignment of the fund, if there was a fund upon which it could operate.

That it was an assignment of the money that might become due to Brinkerhoff under the contract to the extent of $125, and that the plaintiff was entitled to recover $125 provided that sum became due from the defendant to Brinkerhoff.

He charged further that as it was conceded Brinkerhoff did not complete his contract, the jury must determine where the fault, was. That if Brinkerhoff was delayed in his work by the condition of the building that would be a valid excuse. But if, on the contrary, he was not delayed, then he never completed the contract, and he was not entitled to his final payment, even though he did some work, because he was bound to complete his contract as an entirety before he could recover the last payment.

Under this charge the jury found a verdict for the plaintiff for $119.70, and we must assume that the facts were found in favor of the plaintiff, and that the defendant was indebted to Brinkerhoff under the contract in the sum of $119.70.

With the facts so settled it becomes necessary to determine the legal effect of the order under the surrounding circumstances and in view of the fact that it never was accepted in writing by the. defendant

If the instrument is to be viewed in the light of a draft to be-paid by the defendant without regard to the source from which, the money for its payment was to be obtained, then even though the fund or source from which the defendant was subsequently to-reimburse himself was ascertained the draft will not operate as an assignment of such fund, and the-plaintiff cannot maintain this-action in the absence of an acceptance of the draft

But as in this case the order was drawn for a valuable consideration as between Brinkerhoff and the plaintiff, if it is to be-considered as drawn upon the defendant to be paid from the-money due, or to become due, from him to Brinkerhoff under the contract for the construction of the heater, then the mere delivery of the order to the defendant operated as an assignment of that fund, and the defendant was bound upon the receipt of the draft to apply the fund as it accrued to the payment of the order. Brill v. Tuttle, 81 N. Y.. 454; Lauer v. Dunn, 115 id., 405; 26 St. Rep., 412.

We think the language of the draft, and the evidence and the circumstances surrounding the parties and the transaction, show clearly that this order was drawn upon the defendant to be paid from the money due, and to become due, under the heater contract, and that there was no intention, or expectation that the defendant would pay the same upon the credit of the drawer and apply the money as it became due under the agreement to his reimbursement.

In the first place, the order itself directs the payment “ in sums as mentioned in contract for erecting hot water heater,” and thus in plain terms evinces the intention of the drawer to have the payments made at different times and in small sums as they became due him under the contract.

Then when the order was presented to him there was no demand for immediate payment, and in the subsequent conversations between the parties there was no expression of intention to procure payment of the draft otherwise than from the money due from the defendant under the contract with the drawer, and even the defense upon the trial proceeded mainly upon the ground that there was nothing due under the contract

All the circumstances point in the same direction. The drawer of the draft had purchased a horse of the plaintiff, for which he desired to pay, and in the expectation that the defendant would soon become indebted to him, he directed him to pay such indebtedness as it became due to the plaintiff instead of himself, and within the authorities cited above all these facts lead to the conclusion that the order operated as an equitable assignment of the fund.

Our conclusion, therefore, is that the exceptions are not well taken, that the record presents no error, and that the judgment should be affirmed, with costs.

Barnard, P. J., and Pratt, J., concur.  