Rodijkeit v. Andrews.
Assignment of wages is valid, when.
An assignment of wages to be earned in tbe future under an existing employment is valid.
(No. 9776
Decided April 3, 1906.)
Error to the Circuit Court of Lucas county.
The plaintiff in error assigned his wages to the defendant in error. A copy of the assignment is as follows:
“$75.00 Toledo, Ohio, April 22, 1904.
To the Paymaster, L. 8. & M. 8. R. R. :
Dear Sir: For value received, I hereby assign seventy-five 00-100 dollars from the amount now due me, or which may hereafter become due me for services rendered the L. S. & M. S. R. R. or any other railway, firm or person wherever I may be employed as switchman and you are hereby authorized to pay the above amount to P. L. Andrews, or his order, and deduct the same in settlement with me.
No.--. ' (Signed) T. Rodijkeit.”
In February, 1905, Rodijkeit sued the railroad company before a justice of peace for $51.20 for wages. The railroad company filed an affidavit for *105interpleader, asking that the defendant and one Ida E. Chandler be made parties, which was allowed and it paid the sum sued for into court.
The justice ordered the fund to be distributed as follows: (1) The costs; (2) $45.60 to Andrews, and the remainder to be held subject to the justice’s order in the case of Chandler against said Rodijkeit. Ida E. Chandler appealed the case.
In the court of common pleas Andrews in his answer averred that “on the twenty-second day of April, 1904, the said plaintiff was in the employ of said defendant, The Lake Shore & Michigan Southern Railroad Company, and so remained in the employ of said defendant continually up to the twenty-fifth day of January, 1905; that on the twenty-second day of April, 1904, said plaintiff, for a valuable consideration, assigned to defendant, P. L. Andrews, out of the wages then due or to become due him from said defendant company, the sum of $75.00, and that there is now due this answering déféndant on said assignment, a copy of which is hereto attached and marked Exhibit A and made a part hereof, the sum of forty-five and 60-100 dollars.”
A general demurrer to this answer, after it had been amended by setting forth in full the assignment, was sustained and the answer dismissed at the cost of Andrews.
In the circuit court the judgment was reversed and the case remanded with instructions to overrule the demurrér and for further proceedings according to law.
Error is prosecuted to this court to reverse the judgment of the circuit court and to affirm that of the court of common pleas.
*106Mr. James H. Boyd, for plaintiff in error.
The questions here presented aré whether an assignment of wages to be earned in the future in the absence of a contract of employment, will fee enforced:
1. As between the assignor and assignee;
2. As between the assignee and an attaching creditor.
The plaintiff in error’s grounds for claiming that the aforesaid assignment is void and inoperative are based on the fact that there are no decisions of this Supreme Court bearing on the question at bar and that the brief below gives the • development of the law in those states where the questions, here presented to the court, have been settled by their respective supreme courts and in the courts of England.
1. The definition of what property and rights may be assigned.
The definition of what may be assigned is one given by Justice Story and is the foundation of the law in Ohio. Grant v. Ludlow, 8 Ohio St., 38.
2. Test of assignability.
It is now necessary to determine what is the meaning of the phrase “Possibilities coupled with an interest. ’ ’
(a) The test of the assignability of a claim is whether it survives or not. Causes of action which survive to the personal representative are assignable, and those which do not are not assignable. Pomeroy on Remedial Rights, 147; Hepburn’s Case on Code Pleading, 420 et seq.
As illustrations of those, arising out of contract, which are assignable, are the following: A contract of guaranty, Small v. Sloan, 1 Bosw., 352; Bank of *107Ashland v. Jones, 16 Ohio St., 145; a contract to pave streets, Ernst v. Kunkle, 5 Ohio St., 521; right of a borrower to recover back excessive interest upon a usurious loan, Wheelock v. Lee, 64 N. Y., 242; a contract for the hire of the service of state prison convicts, Horner v. Wood, 23 N. Y., 350. Those which are not assignable are, a vendor’s right of lien, Edwards v. Edwards, 24 Ohio St., 402; Baum v. Grigsby, 21 Cal., 172; nor a wife’s inchoate right of dower, Moore v. New York, 8 N. Y., 110; Grogan v. Garrison, 27 Ohio St., 50; a tenancy at will, Say v. Stoddard, 27 Ohio St., 478; nor a.right of way, Boatman v. Lasley, 23 Ohio St. 614; Whitaker’s Annotated Code, 59.
(b) Potential existence.
2 Kent’s Commentaries (12 ed.), side page 468, and foot note (g).
Of the thing sold. The thing sold must have an actual or potential existence, (g) and be specific or identified, and capable of delivery, otherwise it is not strictly a contract of sale, but a special or executory agreement.
Mr. Bell, in his principles of the Law of Scotland, 30, states that the hope of succession may be the subject of sale; but in the case from Merivale, Lord Eldon held that such an expectancy could not be the subject of assignment or contract. Reversionary interest and expectancies, founded on settlements and entailments, are the subject of sale, as, see Post, 475-; but a mere hope, where there is no existing right sustaining the expectation, as where the ancestor is seized in fee simple, with a power of alienation and devise, is not the subject of a valid sale.
(c) 4 Kent’s Commentaries, side page 263; 12th ed., by O. W. Holmes, page 262, note (a).
*108Story, J., in Comegys v. Vasse, 1 Peters, 193. The plaintiff in error contends that the decree of the circuit court of Lucas county, Ohio, should be reversed and that the demurrer, sustained in the-common pleas court to the answer of Andrews,, should be sustained and the judgments of the common pleas court confirmed by this Supreme Court,, on the following grounds:
1. That the assignment executed by Rodijkeit on the twenty-second day of April, 1904, to the said Andrews, defendant in error, is void as against public policy. Chippendall v. Tomlison, 4 Doug., 318; Williams v. Chambers,10 Q. B., 337; Railway v. Woodring, 116 Pa. St., 513; Rose v. Hyndman Steel-Roofing Co., 41 W. L. B., 21.
2. That the assignment was inoperative to reach any wages of said Rodijkeit beyond those already earned at the time the assignment was executed— Rodijkeit, the assignor, not being under a contract of employment, and it was not so alleged by Andrews in his answer in the court below. Lightbody v. Smith et al., 125 Mass., 51; Low v. Pew, 108 Mass., 347; Twiss v. Cheever, 2 All., 40; Mulhall v. Quinn, 1 Gray, 105; Brackett v. Blake, 7 Metc., 335; Wade v. Bessey, 76 Me., 414; Farnsworth v. Jackson, 32 Me., 419; Steinbach v. Brant, 79 Minn., 383.
3. That the assignment is inoperative as against an attaching creditor (Ida E. Chandler, in this case), since it had not been accepted by the Lake Shore & Michigan Southern Railway Company. Mandeville v. Welch, 5 Wheat., 279; Gibson v. Cooke, 20 Pick., 15; The Am. Ins. Co. v. Insley, 7 Barr, 223.
4. That the assignment of a part of a chose in action is inoperative on the ground that to sustain. *109such an assignment would subject debtors to a multiplicity of suits. Getchell v. Maney, 69 Me., 443.
An assignment of wages to be earned in the future in absence of a contract of employment is inoperative to convey such wages, and is void, being against public policy.
In this connection it is to be remembered that an employment at will, no matter how continuous, is not a contract, for—
A contract, as such, must be enforcible at law, and in case there be a breach an action will lie for damages, and in equity an action will lie for specific performance. 7 Am. & Eng. Ency. Law, 150; Bispham’s Principles (5 ed.), sec. 363; Rose v. Roofing Co., 41 W. L. B., 21.
To the same effect we cite the leading case from New York. Cooper v. Douglass, 44 Barb., 409.
The following leading case in Pennsylvania is cited to show that the assignment in question is void as against public policy, that you cannot assign a part of a chose in action, and on equitable grounds. Fairgrieves v. Lehigh Navigation Co. 2 Phila., 182; Railway Co. v. Woodring, 116 Pa. St., 513; Jermyn v. Moffitt, 75 Pa. St., 400; Belden v. Read, 3 Hurl, and Colt., 961; Railway Co. v. Woodring, 116 Pa. St., 513; 2 Story Eq. Jur., sec. 1040.
The assignment in question is inoperative, there being nothing upon which for it to operate. Tolman v. Steel Roofing Co., 9 Dec., 501; 6 N. P., 467.
It was on this principle, and these authorities, that the demurrer was sustained. Brooks v. Tolman, 27 O. C. C., 321; Kane v. Clough, 36 Mich., 436; State v. Hastings, 15 Wis., 75; Hawley v. Bristol, 39 Conn., 26; Metcalf v. Kincaid, 87 Ia., 443; Boylen v. Leonard, 84 Mass., 407.
*110In all of these cases just cited there was a contract of employment existing at the time of the assignment, excepting the Iowa and Michigan cases, and the court' said that this case should not be distinguished from' the cases involving a contract of employment.
The rule that the assignment of wages to be earned in the future, in the absence of a contract of employment, is inoperative to convey such wages, is sustained by the following English cases: Belding v. Read, 3 Hurl, and Colt., 961; Lunn v. Thornton, 1 C. B., 379; Gale v. Bunnell, 7 Q. B., 8508; Chippendall v. Tomlinson, 4 Doug., 318; Williams v. Chambers, 10 Q. B., 337.
The Massachusetts rule is laid down by a well-known case of Lightbody v. Smith et al., 125 Mass., 51. This case is still law in Massachusetts. Low v. Pew, 108 Mass., 347; Twiss v. Cheever, 2 All., 40; Mulhall v. Quinn, 1 Gray, 105; Brackett v. Blake, 7 Metc., 335.
The seller must have a present interest in the property, of which the thing sold is the product, growth or increase.
If a person executes an assignment of his wages, due or to become due, while under a contract of employment, such an assignment is ineffectual to reach wages beyond the scope of time covered by the contract of employment in which the assignment was executed, even though the assignor continues in the employment of the same party, under contract covering consecutive periods of time. Twiss v. Cheever, 84 Mass. 40; Brackett v. Blake, 7 Metc., 335.
A city officer who is chosen for a year, subject to be removed from office at any time, at the will of the mayor and aldermen, and whose salary is payable quarterly, may legally make an assignment of a *111quarter’s salary before the quarter expires. Mulhall v. Quinn, 67 Mass., 105; Crocker v. Whitney, 10 Mass., 316. The following eases in Massachusetts have been overruled by Lightbody v. Smith: Taylor v. Lynch, 5 Gray, 49; Hartley v. Tapley, 2 Gray, 565; Emery v. Lawrence et al., 8 Cush., 151; Weed v. Jewett, 2 Metc., 698.
The Central Law Journal, Yol. 52, p. 1, shows that our test of assignability has been affirmed.
The defendant in error, Andrews, by his counsel, lays great stress on the finding of the court in Mallin v. Wenham, 209 Ill. Rep., 252, to sustain his contention that the assignment in question is valid. The plaintiff in error contends that Mallin v. Wen-ham is not a well considered case and to sustain his contention we call the court’s attention to the cases cited by the court from Massachusetts. Brackett v. Blake, 7 Metc., 355. This case instead of sustaining the contention of the defendant in error sustains the contention of the plaintiff in error. Weed v. Jewett, 2 Metc., 608. But the latter case is overruled by Lightbody v. Smith, 125 Mass., 51, as is also the last case cited from the court in Massachusetts, Emery v. Lawrence, 8 Cush., 151; an assignment of wages for a specified time on account of necessaries furnished.
The rule laid down in Maine by the following cases is of great importance, since they define not only what wages to be earned in the future can not be assigned, but also what can. Wade v. Bessey, 76 Me., 414; Farnsworth v. Jackson, 32 Me., 419.
The rule in Minnesota as laid down that there must be a contract of employment to sustain an assignment of wages to be earned in the future. Steinbach v. Brant, 79 Minn., 384.
*112An assignment which, professes to transfer a debt to arise for wages not yet earned against any person by whom the assignor may therefor be employed, .although followed by a subsequent notice of assignment to such an employment, is insufficient without acceptances to make a valid transfer of the debt •against the employer. Jermyn v. Moffitt, 55 Pa. St., 399.
Without the assent- of the debtor both upon principle and authority that a creditor cannot assign part of a debt or chose in action so as to give even an equitable interest in said assigned fraction of it or create any lien upon it. Farnham v. Virgin, 52 Me., 577; Robbins v. Bacon, 3 Me., 346; Cutts v. Perkins, 12 Mass., 210.
But without such assent of the debtor it is clear, both upon principle and authority, that a creditor cannot assign part of a debt or chose in action, so ;as to give even an equitable interest in said assigned fraction of it or create any lien upon it. Mandeville v. Welch, 5 Wheat., 287; Gibson v. Cooke, 20 Pick., 15; Tripp v. Brownell, 12 Cush., 381; Bullard v. Randall, 1 Gray, 605; Drake on Attachments (3 ed.), sec. 611.
Mr. Myer Geleerd, for defendant in error.
An examination of the reported cases will show that this is not a new question, for in 1836 it was held that a sailor under contract to ship upon a whaling expedition, whose compensation was to be a percentage of the oil obtained, could make a valid sale of his prospective interest. Gardner v. Hoeg, 18 Pick., 168.
The question involved, as to assignments, has been passed upon by the courts of the different states, and *113of England; and the courts, without exception, have upheld such contracts. ' ’
An examination of the published decisions' will show the following rule to be well established:' A person may make a valid sale, or assignment, of his unearned wages, if he is employed at the time he makes the sale or assignment, or had a bona fide contract to enter the employ of some person within a reasonable time, and this is true even if he is working by the day, without any stipulation as to how long his employment will continue, or if he is paid by the piece. Kane v. Clough, 36 Mich., 436; Manly v. Bitzer, 91 Ky., 596; Brewer v. Greisheimer, 104 Ill. App., 323; Mallin v. Wenham, 209 Ill., 252; Auger v. N. Y. Belting Co., 39 Conn., 536; Railway v. Smeeton, 2 Col. App., 126; Darling v. Andrews, 91 Kas., 106; Ouimet v. Sirois, 124 Mass., 162; Wade v. Bessey, 76 Me., 413; Knevals v. Blauvelt, 82 Me., 458; Edwards v. Peterson, 80 Me., 367; Bates v. Richards Lumber Co., 56 Minn., 14; Schilling v. Mullen, 55 Minn., 122; Morrill v. Noyes, 56 Me., 458; Hax v. Plaster Co., 82 Mo. App., 447; Bell v. Mulholland, 90 Mo. App., 612; Garland v. Harrington, 51 N. H., 409; Cooper v. Douglass, 44 Barb., 409; Perkins v. Butler Co., 44 Neb., 110; Metcalf v. Kincaid, 87 Ia., 443; Godcharles v. Wigeman, 113 Pa., 431; Dolan v. Hughes, 20 R. I., 513; Thayer v. Kelley, 28 Vt., 19; Porter v. Dunlap, 17 Ohio St., 591; Johnson v. Donohue, 83 S. W. Rep., 360; Tolman v. Roofing Co., 9 Dec., 501; 6 N. P., 467; Mulhall v. Quinn, 1 Gray, 105; Jermyn v. Moffitt, 75 Pa. St., 399; Railway Co. v. Woodring, 116 Pa., 513; Twiss v. Chever, 2 All., 40; Cooper v. Douglas, 44 Barb., 409; Boyland v. Leonard, 84 Mass., 407; Hackett v. Zundell, 3 O. L. R., 47; In re Karnes, Bankrupt, 3 O. L. R., 505; Brooks Co. v. Tol*114man, 27 O. C. C., 321; 6 C. C. (N. S.), 137; 2 Am. & Eng. Ency. Law (1 ed.), 1031; 4 Cyc. of Law and Proced., 17, 18.
The record shows that at the time Rodijkeit executed the assignment to Andrews he was in the employ of the Lake Shore & Michigan Southern Railway Company, and remained continuously in its employ, and that the railroad company had due notice of this assignment. Consequently the subject matter of the thing assigned had a potential existence.
The assignment in question is not against public policy. Mallin v. Wenham, supra, 209 Ill., 253; Edwards v. Peterson, supra, 80 Me., 367; Smith v. Atkins, 18 Vt., 461; Greenhood on Public Policy, 116, 117; Frorer v. People, 141 Ill., 171; Carroll v. E. St. Louis, 67 Ill., 568.
We concede that an assignment by. a public officer of unearned compensation, as such, is void as against public policy. And the reasons for so holding are clearly stated in the recent case of Burch v. Harte, Clerk, 1 N. P. (N. S.), 477; 4 Cyc., 19.
It may be suggested that the assignment is irregular in form. There are a few words in the assignment that might be omitted, but this does not invalidate the assignment. There can be no dispute but that Rodijkeit intended to assign to defendant in error out of his wages to be earned, the sum of $75.00 for a valuable consideration at the time the assignment was executed, and this instrument clearly indicates upon its face that it is an assignment. As to the other contract of employment, see Brewer v. Griesheimer, 104 Ill. App., 323.
When notice of the assignment was given to the Lake Shore & Michigan Southern Railway Company *115by filing with it the assignment, the rights of all the parties became fixed, and nothing that either Rodijkeit or the Lake Shore & Michigan Southern Railway Company could do (except pay the amount) could affect the rights of the defendant in error. So long as the Lake Shore & Michigan Southern Railway Company received no notice of the assignment while Rodijkeit was in its employ, no relation or liability existed on the assignment as between the parties. Schilling v. Mullen, 55 Minn., 112.
The assignment was presented, became effective and attached to the wages earned under the contract of employment contemplated by the assignor and assignee. ' It was presented to the railway company in whose employ the assignor was at the time the assignment was executed, and to whom it was addressed, and it was presented to the railway company in sufficient time to enable it to preserve the rights of the defendant in error to protect itself.
It is suggested in the plaintiff in error’s brief that an assignment of a part of a chose in action is inoperative, on the ground that it would subject the debtor Lake Shore & Michigan Southern Railway Company to a multiplicity of suits.- We concede this. The railroad company has paid the money into court, and is, therefore, not a party to this proceeding.
Summers, J.
Two of the questions argued by plaintiff in error, namely, that the assignment, not having been accepted by the debtor, was not effective against the attaching creditor, Ida E. Chandler; and that the assignment, being of a part only of a chose in action, is not enforcible against the debtor, are not presented by the record. The first because Ida E. Chandler is hot a party to the proceeding in error *116and the’second because the railroad company did not refuse payment.
The question presented is the right of a person in the employ of another, in the absence of a contract for a definite time of employment, to assign future earnings from such employment.
It is well settled that a mere expectancy or possibility is not assignable at law, consequently wages to be earned in the future, not under an existing engagement but qnder engagements subsequently to be made, are not assignable. If there is an existing employment, under which it may reasonably be expected that the wages assigned will he earned then the possibility is coupled with an interest and the wages may be assigned. Mallin v. Wenham, 209 Ill., 252; Metcalf v. Kincaid, 87 Ia., 443; Peterson v. Ball, 121 Ia., 544; Bell v. Mulholland, 90 Mo. App., 612; Manly v. Bitzer, 91 Ky., 596; Schilling v. Mullen, 55 Minn., 122; Augur v. N. Y. B. & P. Co., 39 Conn., 536; Garland v. Harrington, 51 N. H., 409; Mulhall v. Quinn, 1 Gray, 105; Hartley v. Tapley, 2 Cray, 565; Brackett v. Blake, 7 Metc., 335; Low v. Pew, 108 Mass., 347; Lightbody v. Smith, 125 Mass., 51; O’Keefe v. Allen, 20 R. I., 414; Dolan v. Hughes, 20 R. I., 513; Thayer v. Kelley, 28 Vt., 19.
' Some of the early cases were to the effect that the engagement must be for a time covering the wages assigned. Mulhall v. Quinn, 1 Cray, 105; Hartley v. Tapley, 2 Cray, 565; Taylor v. Lynch, 5 Cray, 49; Lannan v. Smith, 7 Cray, 150. And later cases held that the assignment was valid although the engagement was subject to be terminated at any time.
But in Kane v. Clough, 36 Mich., 436, Cooley, C. J., states that he is unable to distinguish a case of existing employment merely, where there is no con*117tract for a definite time, bnt only an employment, and an expectation of continuous work, from a case of an existing contract for a fixed time but subject to the right to discharge at will, and, accordingly, it is there ruled that an assignment of wages to be earned in the future under an existing employment is valid.
“An assigmnent of wages to be earned in the future under an existing employment, even though the employment is for an indefinite time, is not against public policy and is valid if made for a valuable consideration and untainted with fraud.” Mallin v. Wenham, 209 Ill., 252. ‘ ‘ An assignment of wages yet to be earned is good as against the claims of attaching creditors, if accepted, and if, at the time it is made, there is an existing engagement or employment by virtue of which wages are being, and in the future may reasonably be expected to be earned, even though there is no contract or fixed time of employment.” Metcalf v. Kincaid, 87 Ia., 443. ‘ ‘An assignment of wages to be' earned, made in good faith and for a valuable consideration, is valid. And it makes no difference that the work is being done without a special contract as to it, but only upon an understanding that the employe should continue in the service of the employer ,,as before, at the usuaL wages and in the ordinary course of employment.” Augur v. N. Y. B. & P. Co., 39 Conn., 536. “The fact that a contract of employment is silent ás to the time of its termination does not affect the right of the employe to assign his wages arising under the contract. If the hiring be by the day it is not necessarily for a single day but is a .continuous hiring by the day so long as the contract continues.” Dolan v. Hughes, 20 R. I., 513. “A person in the actual *118employment of another from whom he is receiving wages at a stipulated rate, may make a valid assignment of his future earnings; although the employment is for no definite period, and may be terminated at any time by either party.” Thayer v. Kelley, 28 Vt., 19. “An assignment of prospective wages, to be earned under an existing employment of either certain or uncertain duration, if made in good faith for a valuable consideration, is upheld by the courts, whether intended as a security for present or future advances, or as an outright sale. But if the assignor has no employment at the date of the assignment, which is executed in contemplation of the possible future employment it may attach to, the contract is invalid.” Bell v. Mulholland, 90 Mo. App., 612. “Future wages to be earned under a present contract imparting to them a potential existence, may be assigned although the contract may be indefinite as io time and amount, unless affected by the statute requiring registration.” Wade v. Bessey, 76 Me., 413. “When a party has entered into a contract or .arrangement, by the ordinary and legitimate and natural operation of which he will acquire property, his existing right thereunder is not a mere naked hope; it is a possibility of acquiring property coupled with a legal interest in the contract. The cargo to be obtained or the freight to be earned by a ship on a voyage already contracted for, the wages to be earned under an existing employment, the payment to become due under an existing building contract, are familiar examples. ’ ’ Pomeroy Equity Jurisprudence, sec. 1286.
“An assignment of his wages.by a laborer, executed when he is' not engaged in, and not under contract for, the employment in which the wages are *119to be earned is too vagne and uncertain to be sustained as a valid assignment and transfer of property.” Lehigh V. R. Co. v. Woodring, 116 Pa. St., 513. But “an assignment of wages expected to be earned in the future in a specified employment, though not under an existing employment or contract is valid in equity.” Edwards v. Peterson, 80 Me., 367. The reason such an assignment is not good at law but may be in. equity is tersely stated thus: “To make a grant or assignment valid at law, the thing which is the subject of it must have an existence, actual or potential, at the time of such grant or assignment. But courts of equity support assignments not only of choses in action, but of contingent interests and. expectations, and also of things which have no present actual or potential existence, but rest in mere possibility only.” Smithhurst v. Edmunds, 1 McCart., 416. .'“The invalidity of a grant at law of a mere expectancy imports no more than that it is ineffectual to pass the legal title. Equity construes the instrument as imposing a lien upon the res when produced or acquired, leaving the legal title still in the grantor, who may by some act ratify the same, as by delivery of the property, and then the legal title is complete in the vendee.” Everman v. Robb, 52 Miss., 653. “The reason that it may be different in equity is .not that a man conveys in presentí what does not exist, but that what is in form a conveyance operates in equity by way of present contract merely, to take effect and attach to the things assigned as soon as they come in esse; to be regarded before that time only as an agreement to convey, and after that time as a conveyance.” Peters, J., in Emerson v. E. & N. Ry. Co., 67 Me., 387, 391.
*120The case of Lehigh V. R. Co. v. Woodring, 116 Pa. St., 513, supra, is principally relied upon by plaintiff in error. But that case is not an authority against the conclusion reached in the present case but rather supports it, for it impliedly admits that an assignment of future wages under an existing employment is valid, which is the fact in the case under consideration, and it then holds that an assignment of wages to be earned in the future and not under an existing contract is invalid, with which question we are not at present concerned.
It is true that the judge of the lower court in that case in his opinion says that all such assignments should be declared void as being against public policy and further “Should the law be declared to be that such an assignment is valid, it is not difficult to see that it would open the door to improvidence and profusion on the part of the assignor, and in the end to utter and hopeless poverty. Take the case of any wage earner, or salary earner, or any one who is compelled to work for a living, for in either case the principle is the same. He conceives himself to be in want of money, whether for necessaries or luxuries makes no difference. He finds that he can raise the coveted money by assigning his future earnings to become due from any and every source. No purchaser offers for his wages in any existing employment, for he may quit that employment at any time and thus render worthless his assignee’s security. He therefore, under the pressure of his supposed wants, pledges his whole money-earning power for a price. Presently the money or provisions, or what not, thus acquired are all gone. They may have been recklessly squandered; they may have been doled out only for the very necessaries of *121life, during a period of sickness or other misfortune; it’s all the same. He is not only penniless, hut he has incurred a debt which it may require months and even years to work off. Turn where he will, g*o where he will, his creditors may follow him and sweep away every dollar of his earnings until his debt is paid. In the meantime his children are clamoring for bread.”
These reasons are very like those which are said by Denman, J., in Hale v. Hollon, 90 Tex., 427-430, to' have led the courts of equity to refuse to enforce a sale of a mere expectancy of inheritance unless it was shown that the transaction was free from fraud.. But the judge in the Pennsylvania case, supra, even in what is said respecting public policy liad reference to an assignment of all wages past and future so long* as the assignee’s claim remained unpaid, which is not the present, case. But it is said that in 1905, the year following the decision in Mallin v. Wenham, supra, the legislature of Illinois passed an act in relation to the assignment of wages, the fourth section of which provided that “every assignment of wages to be earned in whole or in part more than six months from and after the making of such assignment shall be absolutely void.” This, however, does not tend to discredit the correctness of'the conclusion reached but only to show that in the opinion of the legislature there was need of legislation.
In Smith v. Atkins, 18 Vt., 461, it is held that “a lease of land, reserving rent, and which provides that all the crops raised on the land during the term are to be the property of the lessor until rent is paid, is valid.” And in the opinion Redfield, J., says: “It is argued, that such contracts are so much, against public policy, that they ought not to be sup*122ported. But we think, they are rather beneficial, and enable the poor man to obtain credit and the use of land, when he could not otherwise do it, and that without detriment to the creditors. And we do not perceive how this will enable him to deceive any one, as the nature of his property may be as well ascertained in such case, as in any other. So far as there is any principle of policy involved in questions of property, it is supposed to have reference to the security of property and credit to those who most stand in need of such protection, who are not generally of the same class of persons. The rule here adopted, we think, secures both far better than the opposite rule could.”
The case immediately preceding was cited with approval on the question of public policy in the case of Edwards v. Peterson, 80 Me., 367. In Manly v. Bitzer, 91 Ky., 596, 598, Chief Justice Holt says: “Looking at the question from the standpoint of public policy, there are two views presented, which, perhaps, balance each other. If the wage-earner in a case like this one be permitted to sell and transfer his unearned wages, the honest creditor may sometimes be defrauded; but, upon the other hand, it may often be necessary to the subsistence of the laborer and his family, as is claimed was true in this instance. ’ ’
In Godcharles & Co. v. Wigeman, 113 Pa. St., 431, the court had under consideration an.act (1881 P. L., 147) requiring persons and companies engaged in any kind of manufacturing to “settle with their employes at least once in each month and pay them the amounts due them for their work or services in lawful money of the United States or by the cash order as described and required in section 3 of this *123act; provided that nothing herein contained shall affect the right of an employe to assign the whole or any part of his claim against his employer. ’ ’ And it is said “The orders given by the defendants and received by the plaintiff constituted a proper set-off. The first, second, third and fourth sections of the act of June 29, 1881, are utterly unconstitutional and void, inasmuch as by them an attempt has been made by the legislature to do what, in this country, cannot be done; that is, prevent persons who are sui juris from making their own contracts. The act is an infringement alike of the right of the employer and the employe; more than this, it is .an insulting attempt to put the laborer under a legislative tutelage, which is not only degrading to his manhood, but subversive of his rights as a citizen of the United States.
“He may sell his labor for what he thinks best, whether money or goods, just as his employer may sell his iron or coal, and any and every law that proposes to prevent him from so doing is an infringement of his constitutional privileges, and consequently vicious and void.”
Whether or not an act precluding an assignment of wages would be constitutional we are not called upon to determine, but it is worthy, of note, on the question of public policy, that in the act just referred to the legislature thought it proper to safeguard the right of the employe to assign his wages.
In The Brooks Co. v. Tolman, 6 O. C. C. (N. S.), 137, it was held that “an assignment of wages or salary to be earned under an existing employment, made in good faith and for a valuable consideration, is valid where the relation between the employe and his employer is such that the employe may reason*124ably be expected to earn the wages covered by the contract, and against such a contract and claim even homestead exemption cannot prevail.” That case was affirmed 74 Ohio St., 427.
The question there presented is the same as that raised here. In each case the wages earned were earned under an engagement existing at the time the assignment was made.
The assignment in each case is not limited to the wages to be earned under the existing employment but in express terms includes those to be earned in any other employment, but the question whether the assignment would be effective as to wages earned under engagements other than the one existing is not raised and is not considered. Brewer v. Greisheimer, 104 Ill. App., 323.
In Porter v. Dunlap, 17 Ohio St., 591, a teacher engaged in teaching assigned a specific amount of his wages earned and unearned and it was ruled that the assignment was good in equity. The question whether it was good at law does not seem to have been presented and was not considered.
Affirmed.
Shauck, C. J., Price, Crew and Davis, JJ., concur.