¶1When the defendants accepted the order drawn on them in favor of the plaintiff by Sullivan, they were entitled to receive whatever sums he had already earned or should after-wards earn in the performance of the written contract between him and Gilmore & Co., of which they then held a valid assignment. Their acceptance of the order was in special terms, to pay the amount mentioned in it whenever so much should be earned by Sullivan and received by them, over and above the sum of $790, for which they had otherwise become responsible on his account. The plaintiff thus acquired a direct interest in the assignment of said contract to the defendants, and they became bound to retain it for his benefit and to use reasonable diligence to make it available to him; for after the acceptance of the order they held the assignment in trust for him. They were to collect and receive whatever Sullivan should earn in the performance of the contract, and make the appropriation of it in the manner stipulated by them. They err in assuming that they were to receive only the net earnings of Sullivan, or the profits which he should make in the execution of the work undertaken by him. The assignment entitled them to collect from Gilmore & Co. whatever sums should become due from *50them to Sullivan, and their acceptance of the oiler bound them to apply the proceeds so received, first to indemnify themselves against their liabilities previously contracted, and then towards the payment of the thousand dollars due to the plaintiff. They could not, therefore, without violating his rights, enter into new stipulations with Gilmore & Co. that they would make a different appropriation of any sum of money received from Gilmore & Co. on account of the earnings of Sullivan ; nor could they, without the consent of the plaintiff, divest themselves of all right under the contract by assigning it to other persons. Sullivan did not agree with the defendants in positive terms that he would go on and fulfil his contract with Gilmore & Co., although it is obvious that when he made the assignment of it he intended and expected to do so. If he had chosen to stop altogether, and had afterwards done nothing under the contract, he would have earned nothing, and these defendants could never have received anything, or have incurred or been subjected to any liability under their acceptance of his order. But he did in fact continue to pursue the work, and he earned all the money that was afterwards paid to the defendants and to McGregor after the assignment made to them. It is of no consequence, so far as the right of the plaintiff is concerned, that a part of the money paid to the defendants was paid by Gilmore & Co. in advance ; it was paid, and was afterwards applied to the discharge of the earnings of Sullivan which became due. The plaintiff is entitled to insist that this sum, together with so much of what was subsequently paid to McGregor as would amount in the whole to a thousand dollars, should have been received and held by the defendants to his use, and paid in discharge of the order of Sullivan in his favor which they had accepted.
¶2. The court therefore erred in ruling that, upon all the evidence in the case and upon the facts offered to be shown, the plaintiff was not entitled to recover; and his exceptions must be sustained, the verdict against him set aside, and a new trial granted.