Statement of the Case. exceeded by more than $2000 the contract price of the jail; and that the plaintiff had then been engaged upon the iron work for a week, and completed that work on September 24, 1883. The plaintiff introduced evidence tending to show that at the time of that settlement the defendant agreed in writing with Meyers & Son to pay them the sum of $2000, part of the aforesaid sum of $4500, in case one Secrist, who was then prosecuting a claim against the county for stone furnished to Meyers & Son for the jail, should not finally recover the same against the county, and that Secrist's suit was finally determined against him and in favor of the county by the judgment of the Supreme Court of Indiana, reported in 100 Indiana, 59, yet no part of the said sum of $2000 had ever been paid to Secrist or to any one else; that the actual damages sustained by the county on account of the delay in completing the jail did not exceed the sum of $25; and that the $4500 deducted from the contract price on account of such delay was not intended to be enforced against Meyers & Son. The defendant offered evidence tending to show "that the settlement was made in good faith, and that the two thousand dollars which the defendant promised to pay Meyers & Son, in case the Secrist claim was defeated was not intended as a sham." The complaint, signed by the plaintiff's attorneys, in an action brought June 30, 1884, by the plaintiff against Meyers & Son, setting forth the same facts as the complaint in the present case, and seeking to recover against Meyers & Son the sum of $7700 for work done upon the jail, was offered in evidence by the defendant, as tending to show that at that time the plaintiff did not claim to have any such demand as it now asserted against the present defendant. This evidence was objected to by the plaintiff, and excluded by the court; and to the ruling excluding it the defendant excepted. The defendant requested the court to instruct the jury that, by the statutes of Indiana, contracts for the construction of county jails and other public buildings must be advertised and let by the board of county commissioners as an entirety, and Statement of the Case. not in parts; and that the contract between the board of commissioners and Meyers & Son was not so divisible and assignable by the latter, that an assignment of a part thereof by them and mere notice given by the assignee to the board of commissioners of the assignment, obliged the board to recognize the assignment and to account and settle with and pay the assignee for work done and materials furnished by the assignee. The court refused to give the instructions requested; and instructed the jury that the effect of the agreement between Meyers & Son and the plaintiff was to put the plaintiff into a position of being entitled to do the iron work and to get the pay therefor from the county; that Meyers & Son made no agreement to pay the plaintiff, and the plaintiff by doing that work acquired no right of action against Meyers & Son, but was entitled simply to look to the county; and that if the board of commissioners had notice of the agreement between Meyers & Son and the plaintiff before the settlement with Meyers & Son, the defendant was bound by that agreement, and obliged to withhold from Meyers & Son money enough to pay the plaintiff, and the plaintiff might maintain this action; and that if a copy of the contract was presented by the plaintiff and received by the auditor at his office, that was legal notice to the board of commissioners. To this instruction, as well as to the refusal to give the instructions requested, the defendant duly excepted. The court further instructed the jury that if the defendant, before and at the time of the settlement with Meyers & Son, had no notice of the plaintiff's claim, the plaintiff could not recover if the settlement was made in good faith; but that if the settlement was a sham, not intended as between the parties to be a settlement, the plaintiff might recover in this suit the sum in the defendant's hands owing to Meyers & Son under the original contract. No exception was taken to this instruction at the trial. The jury returned a verdict for the plaintiff in the sum of $8739.50, upon which judgment was rendered; and the defendant sued out this writ of error. Argument for Defendants in Error. Mr. Addison C. Harris and Mr. William H. Calkins for plaintiff in error. Mr. Levi Ritter, Mr. E. F. Ritter and Mr. B. W. Ritter, for defendants in error, argued upon the merits of the case as follows: It is urged that a part only of the contract could not be assigned without the consent of the county and that it is not liable to the plaintiff unless it assented to the assignment; that mere notice is not sufficient. In Indiana it has been held in a number of cases that part of a contract may be assigned without the assent of a debtor. McFadden v. Wilson, 96 Indiana, 253. In Harrison, Receiver, v. Wright, 100 Indiana, 515, on pages 530, 531, it is said: "The rule that a chose in action, or a part of a chose in action, cannot be assigned, is the rule of law, but it is not the rule in equity, and still less is it the rule under modern statutes, which, as in this State, expressly authorize the assignments of choses in action, and direct that all actions shall be prosecuted in the name of the real party in interest. Under these statutes, no good reason is apparent why the assignee may not maintain an action at law.” "If, by the assignment, the assignee acquires a legal right, it is by force of the statute, without regard to the assent of the debtor or holder of the fund. If he acquires an equitable assignment or right simply under the rules in equity, this right is independent of any assent by the debtor or holder of the fund." See, also, Indiana Manufacturing Co. v. Porter, 75 Indiana, 428; Bartholomew County v. Jameson, 86 Indiana, 154, 165; Louisville & St. Louis Railroad v. Caldwell, 98 Indiana, 245; Wood v. Wallace, 24 Indiana, 226; Lapping v. Duffy, 47 Indiana, 51; Groves v. Ruby, 24 Indiana, 418; Hays v. Branham, 36 Indiana, 219. From these cases it will be seen that in Indiana at least an assignment of a part of a fund may be made without the assent of the debtor. And this is the rule elsewhere as well. See Laughlin v. Fairbanks, 8 Missouri, 367, 371; Anderson v. Van Alen, 12 Johns. 343; Russell v. Fillmore, 15 Vermont, Opinion of the Court. 130; Field v. New York, 6 N. Y. 179; S. C. 57 Am. Dec. 435; Moody v. Kyle, 34 Mississippi, 506; Corser v. Craig, 1 Wash. C. C. 424; Patten v. Wilson, 34 Penn. St. 299; Lyon v. Summers, 7 Connecticut, 399. The rule that a partial assignment could not be made without the consent of the debtor never amounted to more than that without such consent the assignee could not maintain an action in his own name. It was within the power of Meyers & Son to assign an interest in the contract with the county, together with a portion of the money due therefor. The fact that they were required to give bond for the performance of the work does not affect this right. Their bond remained in force as well after the assignment as before. They were still liable to the county upon their contract and bond, and the county was not injured by the assignment. We cite the court to the following cases, some of which have been cited in support of other positions herein: Field v. New York, 6 N. Y. 179; S. C. 57 Am. Dec. 435; Devlin v. New York, 63 N. Y. 8; Dannant v. Comptroller, 77 N. Y. 45. These are all cases of partial assignments and cover this case. See, also, as in point: Parker v. City of Syracuse, 31 N. Y. 376, 379; Horner v. Wood, 23 N. Y. 350; Taylor v. Palmer, 31 California, 241; Cochran v. Collins, 29 California, 129, 131; Morse v. Gilman, 18 Wisconsin, 373; Gee v. Swain, 12 Wisconsin, 450; Ernst v. Kunkle, 5 Ohio St. 520; Bradley v. Root, 5 Paige, 632; Pendleton v. Perkins, 49 Missouri, 565; Brackett v. Blake, 7 Met. 335; S. C. 41 Am. Dec. 442. The right to assign contracts with, or claims against, municipal corporations is recognized in Indiana. Board v. Jameson, 86 Indiana, 154; Smith v. Flack, 95 Indiana, 116; Coquillard v. French, 19 Indiana, 274. MR. JUSTICE GRAY, after stating the case as above, delivered the opinion of the court. Before proceeding to consider the merits of this case, it is necessary to dispose of the objections taken to the jurisdiction. assumed by the Circuit Court of the United States. Opinion of the Court. 1. It was contended that that court had not cognizance of the suit, because the plaintiff's assignors could not have prosecuted it, inasmuch as one of them was a citizen of the same State as the defendant. But that restriction was applicable only to suits commenced in the federal court, and did not extend to suits removed into it from a state court. Act of March 3, 1875, c. 137, §§ 1, 2, 18 Stat. 470; Claflin v. Commonwealth Ins. Co., 110 U. S. 81. 2. It was further objected that the assignors were necessary parties to the suit, because they had assigned to the plaintiff part only of their original contract with the defendant; and because the statutes of Indiana, while they require every action arising out of contract to be prosecuted by the real party in interest, provide that "when any action is brought by the assignee of a claim arising out of a contract, and not assigned by endorsement in writing, the assignor shall be made a defendant, to answer as to the assignment or his interest in the subject of the action." Indiana Rev. Stat. of 1881, §§ 251, 276. But this objection was rather to the nonjoinder of defendants than to the jurisdiction of the court, and presented no valid reason why the court should not proceed. The assignors were not parties to the suit at the time of the removal into the Circuit Court; and as soon as they were made parties in that court, they disclaimed all interest in the suit; and as no further proceedings were had, or relief sought or granted, against them, their presence was unnecessary. Walden v. Skinner, 101 U. S. 577; Morrison v. Ross, 113 Indiana, 186. Besides, the first paragraph or count of the complaint (upon which alone the trial proceeded) alleged that the defendant not only had notice of the assignment to the plaintiff, but consented to that assignment. If that were so, there would be a new and direct promise from the defendant to the plaintiff, and the assignors would be in no sense parties to the cause of action. 3. It was also objected that the petition for removal was filed too late, after the case had been tried and determined by the board of county commissioners. But under the statutes of Indiana then in force, although the proceedings of county commissioners, in passing upon claims against a county, are in |