BENEDICT V. WILLIUIS.
I have estimated the amount due the plaintiff at $800, but Bsthe evidence upon this point is not complete, either party may,within'80 days, ask a reference to a master. Decree for the complainant.
See Brown v. Slee, notes of cases, post.
(Oircuit Court,8. D. N61IJ York.
CoNTRACT-WANT. OF PRIVITY.
The defendant W. contracted with defendant K. to have the latter conduct a litigation for him, and receive one-fourth of the avails for his services. K., with assent of W., engaged M. and L. to assist him, they to share equally with him in his one-fourth. After W. received the avails, L. was settled with, but M. 's share not being paid, the plaintUf, as M. 's assignee, brought this action in the state courts in his own name to recover it. Thereafter the suit was removed to the equity side of this court, and defendant W. demurred upon the gronnds of want of privity of contract, and that plaintiff's remedy, if any, is at law.Ue;a, that M. 's share,. if. payable to K., was so payable for M. ; .and, not having paid to K., M. would have the right to sue both W. and K., the latter as hIs trustee, and the former lloS a debtor to his trustee for him; and plaintiff, as M.'8 assignee, had the same right to enforce the claim.
REMOVAL OF CAUtlE-PROCEDURE.
The plaintiff haVing properly brought the action in his own name, in· the state courts, he could proceed with it after its removal only on the equity side of this court; his right, as the assignee of a chose in action, being a purely equitable one, and strictly cognizable in his own name in a court of equity only.
William A. Beach, for plaintiff. Edward M. Shepherd, for defendants. WHEELER, D. J. This cause has been heard on demurrer to the bill. It was commenced in the state court and removed to this cdurt. The bill shows that the defendant Williams, a citizen of Connecticnt, made a contract with the defendant Kernochan, a citizen of Massa. chusetts, by the terms of which the latter was to conduct litigation in behalf of the former against the Kansas Pacific Railway Company, as counsel, and to receive one-fourth part of the avails theraof for so doing; that by a contract between Kernochan and Edwin R. Meade and Henry E. Knox, the two latter were to assist in the conduct of the litigation, and to share equally with the former in the part of the avails; that the litigation was conducted by them with the
knowledge of Williams, and proceeded until the sum of $27,500 was recElived from it as the avails of it by him; that Meade sold and assigned his share of these avails to the orator, citizen of New York; that Knox has been fully settled with; and that Meade's share has not been paid over. The principal grounds of demurrer assigned are that there was no privity of contract between either Williams and Meade or Williams and the orator; that Williams is only liable to Kernochan, who may be liable over to Meade or to the orator; and that the orator's remedy, if he has any, is at law. The want of privity relied upon, however, is not materia1. It may be that Williams had only to pay Kernochan as, he agreed to, but if so he has not paid to Kernochan Meade's share. That share, if payable to Kernochan, was payable to him for Meade; and Meade would have the right to proceed for it against both; against Kernochan as his trustee, and against Williams as a debtor to his trustee for him. This right he could sell and assign, as the bill alleges he did sell and ,as!'lign it to the orator, and when so sold and assigned the orator became vested with the right also in some manner to enforce it. It is understood that the distinctions between legal and equitable procedure are,done away with in the state courts, from which the case was removed, and that there the remedy is ,to be sought by the real owner of a cause of action in his own name. In this court these dis,tinctions are kept up, although the proceedings at law conform to those, in the courts of the state. At common law a mere chose in action was not assiguable at all. although it was assignable in equity; and hence an assignee of a chose'in action could not maintain an action at law upon it in his own name, but could, in the name of the assignor, for his own benefit, or he could proceed in equity to recover it, and, if he did, must proceed in his own name. The orator took the only mode that was open ,to :him in the state court. Had the ,proceedings refnained there, his rights would have been wrought out by the appropriate methods there provided. But when the proceed. ings were removed into this court they were neither. removed from a court of law or the law side of a court to the law side of this court; nor from a court of equity or from the equity side of a court to the equity side of this court; but they were removed from that court as it was, where remedies are administered without this distinction, to this court, where the distinction is observed; and the removal was necessarily to that side of this court where the appl,'opriate relief, if due, could be obtained. He is merely the assignee of a chose in action
which accrued to Meade, or to Kernochan for Meade; the proceed. ings are in his own name, and he can go forward with such proceedings only on the equity side of this court. His right is a llurely equitable one, and strictly cognizable iu his own name in a cOurt of equity only, or only where equitable remedies are administered; and the remedy is none the less equitable because it might not be so classed in the state court. The demurrers are overruled, with leave to the defendants to answer over within 30 days on payment of costs of demurrer.
DAVIS and others.
(Circuit Court, D. New Hamp8hire. April 20,1882.)
A contract which provides that one party shall use his skill and machinery in the manufacture of a certain article, while the other party agrees to purchase from him such manufactured article, to the extent of the market demand on condition that the manufacturer shall sell exclusively to him, as a general rule will not be ordered to bespeciflcally performed by a court of equity, and espec,ially where a specific performance has been rendered impossible by a sale to a third party of a half interest in the machinery employed. 2.
On execution, when specific performance cannot be decreed, the negative injunction against dealing with other persons, which is in, its nature auxiliary to this relief, be issued; nor, where a contract is unequal, will it be enforced by injunction.
for complainant. . LOWELL, C. J. The plaintiff in his bill repreeents that the defendant Benjamin Davis was a skilful manufacturer of peg-wood, and owned the special machinery for that manufacture, which only one other person had the skill and machinery to make; and the plaintiff, being desirous to go into this business, bought one-half of certain machinery, tools, and stock of said Benjamin, and entered into partnership with him, but soon dissolved that connection, and made a contract with said Benjamin, March 25, 1881, for a term of three. years, by which the said Benjamin agreed to make peg-wood exclusively for the plaintiff, in such quantities as he should order, delivered on board the cars at or near his factory at Rumney, at four cents a roll, and not to manufacture for anyone else. The
Heyde, Dickema.n x Howe and Burrows Wadleigh x Fish, for defendants.