execution and the testimony of Elias Ritts and W. C. Cheeseman. Mrs. Lowe's copy of the agreement, admittedly written by Mr. Cheeseman, states that the $12,000, or needed sum, to be paid from the proceeds of the accident policy, was to be "for obligations of the Company for which Jno. E. Lowe would have been personally responsible"; and the testimony of Messrs. Ritts and Cheeseman was to the effect that nothing was mentioned in the discussion with Mrs. Lowe except bank obligations about to fall due. Any misapplication of funds by John E. Lowe was not mentioned. As before stated, the agreement cannot be so enlarged. As we interpret the paper, Mrs. Lowe was agreeing by it to pay from her insurance money a sum which her husband and each of the shareholders would have been required to pay to meet the immediately maturing notes of the company. The amount of that sum does not appear in the agreement or in the testimony.
As we view the agreement, even as supported by the testimony, it is altogether too vague an instrument to affix a lien upon the accident insurance fund. No particular form is required, it is true, to constitute a valid equitable assignment, but it is necessary that the used words clearly create an irrevocable appropriation of the fund. In other words, the fund is placed under the control of the creditor, and the holder of the fund is in duty bound to honor the assignment in due time. In the present case the writing does not even definitely name the promisee or promisees. It nowhere given any indication of an intent on the part of the promisor to part with control o the fund, or any part of it, but is a mere promise to pay from that fund. Such a mere promise does not constitute an equitable assignment. Christmas v. Russell, 14 Wall. 69, 20 L. Ed. 762. In the present writing, while the maximum amount of the promise is fixed, no definite sum is named. The promise is to apply funds "so far as necessary." To hold the instant writing a valid assignment, we must also hold that the plaintiff relinquished all power of judgment as to the necessity of the payments made, and transferred all her rights in that respect to the defendant. The latter is called upon to determine the unnamed promisor or promisees, the meaning of the expression "maturing obligations of this corporation," and the extent of the compliance of the stockholders with the condition precedent to the writing becoming effective. We find no such authority in the writing.
The present alleged assignment of part of the fund has not been marked by the ordinary incidents of a valid equitable assignment. No notice of its execution was ever given the fundholder, defendant, by the plaintiff, nor by the Lowe Motor Company or its stockholders until after this suit had been brought. The ordinary rule requires prompt notice of the assignment to the fundholder and acquiescence to it on his part.
Our attention has been called to American Surety Co. v. Finletter, 274 F. 152 (C.C.A. 3), opinion by Judge Woolley, wherein Walker v. Brown, 165 U.S. 654, 17 S. Ct. 453, 41 L. Ed. 865, and Ingersoll v. Coram, 211 U.S. 335, 29 S. Ct. 92, 53 L. Ed. 208 are followed. The facts in each of these cases differed materially from those of the instant case. In the first case mentioned, a contractor for a building for the city of Philadelphia agreed with his surety that, in event of his default and the surety were thereby made liable upon the bond, all deferred payments by the city to the contractor should be credited to the surety upon any claim upon the latter by reason of its suretyship. The contractor's agreement, in such cases, is made a part of the contract of suretyship, and the acceptance of the bond by the city was also an acquiescence of the appropriation of the deferred payments in case of default by the contractor. The city was not, as the fundholder here, required to act as a judge and jury in settlement of a dispute upon an obscure provision of the agreement, but in reality a party to the provisional appropriation of amounts which were beyond dispute at the time of default. The decisions cited in the opinions, Walker v. Brown and Ingersoll v. Coram, were also in relation to cases wherein distinct appropriations of the funds in question had been made, and they, as well as American Surety Co. v. Finletter, assert an unquestioned principle. That, where a party sufficiently indicates an intention to make some particular fund security for a debt or other obligation, by express executory agreement, he thereby creates an equitable lien upon the property indicated. But the facts in this case do not bring it within the scope of the rule. The plaintiff, a woman then without sufficient funds, was agreeing to pay a part of the amount immediately necessary to keep the motor company in operation when and if she received the proceeds of the insurance policy, provided the living stockholders furnished such necessary funds at once, and provided also that the amount of her payment should not be over $12,000, and that the obligations paid were such as were liabilities of her husband, as well as the motor company. We find no intention expressed in her agreement of subjecting her claim upon the insurance company, or any part of it, to the control of any person other than herself, or of making that claim security for her performance of her promise.
So finding, our decree must be in favor of the plaintiff upon the equitable issue raised by the supplemental affidavit of defense and the answer thereto by plaintiff. Let a decree to that effect be submitted.
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