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1. Did Judge Hand's second opinion adopt the theory advocated by Judge Clark in his dissent from the first opinion?3
2. In his first opinion Judge Hand relied on a series of New York cases which had held that, under a chattel mortgage that contained a clause covering after-acquired property, the mortgagee's claim to such property was defeated by a levy in aid of a judgment recovered by a creditor of the mortgagor. In dissent, Judge Clark suggested that the New York case law distinguished between a mortgagee's claim to after-acquired chattels and an assignee's claim to at least some types of intangibles not in existence when the assignment was made. That the New York case law did make such a distinction seems to have been first suggested in an article by Stone, The "Equitable Mortgage" in New York, 20 Colum. L. Rev. 519 (1920).4
3. In Williams v. Ingersoll, 89 N.Y. 508 (1882), cited by Judge Hand in his second opinion, Heath assigned to his attorney, Williams, the proceeds, if any, of a pending action for malicious prosecution against Ingersoll. No doubt to everyone's surprise, Heath recovered a judgment for substantial damages. Held that the assignment gave Williams an "equitable" interest in the award which prevailed over the claim of a judgment creditor of Heath's who sought to attach the proceeds. Fairbanks v. Sargent, 117 N.Y. 320, 22 N.E. 1039 (1889) also involved an assignment to an attorney of the proceeds of pending litigation. Held that the "equitable" interest of the attorney under the assignment prevailed over the claim of a subsequent assignee to whom the proceeds were actually turned over.5
Does "equitable" in the two cases just referred to seem to mean the same thing as the "equitable lien" that Judge Hand referred to in his first opinion? Or the "equitable title" referred to in Muller v. Pondir, supra p. 1444?6
4. In Field v. The Mayor of New York, 6 N.Y. 179 (1852), Bell assigned to Garread (who made a further assignment to Field) money that might become due to him for printing work done for the City. Bell did such work for the City under contracts entered into after the date of the assignment. The City, despite notification of the assignment, paid the money to Bell (who was insolvent). In an action by Field against the City, Field recovered judgment. Welles, J., commented:7
It is contended by the counsel for the appellants, that the assignment of Bell to Garread did not pass any interest which was the subject of an assignment, for the reason that there was no contract, at the time, between Bell and the corporation of the city, by which the latter was under any binding obligation to furnish the former with job printing, or to purchase of him paper or stationery; and that therefore the interest was of too uncertain and fleeting a character to pass by assignment. There was indeed no present, actual, potential existence of the thing to which the assignment or grant related, and therefore it could not and did not operate eo instanti to pass the claim which was expected thereafter to accrue to Bell against the corporation; but it did nevertheless create an equity, which would seize upon those claims as they should arise, and would continue so to operate until the object of the agreement was accomplished. On this principle an assignment of freight to be earned in future, will be upheld, and enforced against the party from whom it becomes due. . . . Whatever doubts may have existed heretofore on this subject, the better opinion, I think, now is, that courts of equity will support assignments, not only of choses in action, but of contingent interests and expectations, and of things which have no present actual existence, but rest in possibility only, provided the agreements are fairly entered into, and it would not be against public policy to uphold them. Authorities may be found which seem to incline the other way, but which upon examination will be found to have been overruled, or to have turned upon the question of public policy.
Id. at 186-187.9
Does the Field case go further than Rockmore v. Lehman? than Williams v. Ingersoll or Fairbanks v. Sargent?10
5. In his second opinion in Rockmore v. Lehman, Judge Hand considers, and rejects, the trustee's argument that the money paid to the assignee's of Surf's contracts with Calvert constituted voidable preferences under §60 of the Bankruptcy Act. According to Judge Hand, "the date of the assignments governed the imposition of the liens on any sums due from Calvert. This is because the contracts, and not the moneys accruing under them, were the subjects of the assignments." Is this consistent with Judge Gignoux's analysis in Shiro v. Drew, supra p. 1452? Judge Hand also points out that "[i]t has long been New York law" that assignments of future claims of the sort involved in Rockmore v. Lehman are "good against a bona fide purchaser, even though the bona fide purchaser is the first to give notice to the obligor." What is the relevance of this in evaluating the trustee's preference argument? Read, again, the material on voidable preferences in Note 1 following Shiro v. Drew, supra p. 1452. For more on the complicated issue of priority among successive assignees (to which Judge Hand's comment concerning the rights of bona fide purchasers is a dark allusion), see Section 6.11
Has Judge Hand's treatment of the preference issue been invalidated by the enactment of the Uniform Commercial Code? Recall the definition of "account" in §9-106, and the exception in §9-302(1)(e) for what the comment to that section calls "casual or isolated assignments."
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