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 de fendant 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.

case.

These are all cases of partial assignments and cover this 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. Jarneson, 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

Opinion of the Court.

some respects assimilated to proceedings before a court, and their decision, if not appealed from, cannot be collaterally drawn in question, yet those proceedings are in the nature, not of a trial inter partes, but of an allowance or disallowance, by officers representing the county, of a claim against it. At the hearing before the commissioners, there is no representative of the county, except the commissioners themselves; they may allow the claim, either upon evidence introduced by the plaintiff, or without other proof than their own knowledge of the truth of the claim; and an appeal from their decision is tried and determined by the circuit court of the county as an orig. inal cause, and upon the complaint filed before the commissioners. Indiana Rev. Stat. § 5758-5761, 5777; State v. Washington Commissioners, 101 Indiana, 69; Orange Commissioners v. Ritter, 90 Indiana, 362, 368. It follows, according to the decisions of this court in analogous cases, that the trial in the Circuit Court of the county was "the trial" of the case, at any time before which it might be removed into the Circuit, Court of the United States, under clause 3 of section 639.of the Revised Statutes. Boom Co. v. Patterson, 98 U. S. 403; Hess v. Reynolds, 113 U. S. 73; Union Pacific Railway v. Kansas City, 115 U. S. 1, 18; Searl v. School District, 124 U. S. 197, 199.

The only ruling upon evidence, which is excepted to, is to the exclusion of the complaint in an action brought by the present plaintiff against its assignors. But there is no material difference between the facts stated in that complaint and those stated in the complaint in the present suit; and the former complaint, not under oath, nor signed by the plaintiff, but only by its attorneys, was clearly incompetent to prove an admission by the plaintiff that upon those facts it had not a cause of action against this defendant. Combs v. Hodge, 21 How. 397; Pope v. Allis, 115, U. S. 363; Dennie v. Williams, 135 Mass. 28.

We are then brought to the main question of the liability of the defendant to the plaintiff, depending upon the validity and effect of the partial assignment to the plaintiff from the original contractors of the.r contract with the defendant.