the capitol building commissioners, with the consent given by the capitol building commisadvice and consent of the heads of depart- sioners and governor this eleventh February, 1882.

On June 20, 1882, the firm of Taylor, Bab- | writing, indorsed on the back, the consent be cock & Co. assigned and transferred the entire ing in these words: contract to Abuer Taylor, the language of the State of Texas, transfer being as follows: County of Travis.

}

do hereby transfer and assign, "In accordance with the provisions of sec and have transferred and assigned, to Abner tion 26 of the original contract between the Taylor, the said contract to construct, build, state of Texas and Matthias Schnell for build erect, complete, and deliver to the state of ing a new capitol, dated eighteenth of Janu Texas a capitol building and appurtenances ary, 1882, we, O. M. Roberts, governor of thereto according to the plans and specifica- Texas, and Joseph Lee and N. L. Norton, cap tions therein reterred to and made a part there-itol building commissioners, acting by and with of, and each and every, all and singular, the the advice and consent of the heads of depart rights, protits and benefits thereunder, the same ments, do hereby consent in writing to the as 6391 to be by him carried out in the same signment made by Matthias Schuell of his con manuer as provided for in the original contract to Taylor, Babcock & Co., and to the tract between the state of Texas and Matthias further assignment made by Taylor, Bab Schnell as aforesaid;" cock & Co., of the said contract to Ab ner Taylor; and we, the said governor, capito` building commissioners, and heads of depart ments do hereby recognize Abner Taylor as the contractor bound in all respects to carry out the contract with the state of Texas in like manner as the original contractor, Matthias Schnell, was bound; and in testimony of ou: advice and consent having been so given we hereunto subscribe our names officially this the twelfth day of July, 1882.

which assignment was accepted in writing by Abner Taylor, whose acceptance contained this covenant on his part:

"(Signed)

Joseph Lee, N. L. Norton. "Approved by and with the advice and com of the heads of the departments. "(Signed) O. M Roberts, Governor." On April 14, 1883, A. A. Burck executed to plaintiff the following conveyance: The State of Texas,

"Now, therefore, in consideration of the fact that, by virtue of the transfers and assignments herein set out, I, the said Abner Taylor, have become the contractor with the state of Texas for the building of the cap itol aforesaid, and in consideration of the fact that the capitol building commissioners, to gether with the governor of Texas and the several heads of departments, have consented to the several transfers and assignments aforesaid, and in further consideration of the stipu-sent lations, covenants and agreements set forth in the original contract between the state of Texas and Matthias Schnell, to the profits, rights and benefits of which I have succeedral by virtue of the said contract and the several transfers and assignments aforesaid, I, the said Abner Taylor, have agreed, covenanted, and bound myself, and do by these presents agree, Covenant and bind myself, unto the state of Texas, through its capitol building commis sioners, that I will in every particular carry out, finish and perform the contract made and entered into by and between the state of Texas and Matthias Schnell, a printed copy of which is hereto attached as aforesaid, in the same manner, style, and method, and according to the said terms, tenor and effect that the Said Matthias Schnell was originally bound to do, and I hereby adopt the said contract as my own, and assume each and every, all and singular, the obligations therein imposed on the party of the second part as my own as fully and completely as if they had originally been assumed, incurred and undertaken by me in person, the said contract, of which the printed copy is hereto attached, being hereby incorporated into this contract and made a part

thereof.

"And I, the said Abner Taylor, do hereby bind myself, my heirs, executors, and administrators to keep and perform this covenant, agreement 640] and contract according to its full intent and meaning in each and every, all and singu lar, of its parts and stipulations, in every par ticular whatsoever.

"In testimony whereof I hereto set my sig nature, this, the twentieth day of June, A. D. 1882 (one thousand eight hundred and eightytwo).

"Seal.] (Signed.) Abner Taylor"; -and this assignment and acceptance, both be ing duly acknowledged, were also assented to in

County of Travis.

[641

"Know all men by these presents that I, A A. Burck, of the county of Milam and state of Texas, in consideration of the sum of ter thousand dollars to me in hand paid by S. B Burck, of the county of Galveston and state of Texas, the receipt of which is hereby acknow edged, have granted, bargained, sold, conveyed and released, and by these presents do grant, bargain, sell, convey, and release, unto the said S. B. Burck, heirs and assigns, the fol lowing described property, to wit: One undivided one half interest in one sixteenth inter est in the capitol contract which was awarded to M. Schnell by the Texas state capito! commissioners, Joseph Lee and N. L. Norton, and transferred to me by said Schnell, together with all and singular the rights, members, improvements, hereditaments, and ap purtenances to same belonging or in any wiśc incident or appertaining:

"To have and to hold all and singular the

premises above mentioned unto the said S.
B. Burck, heirs and assigns forever; and I de
hereby bind myself, heirs, executors, and ad
ministrators, to warrant and forever defend
all and singular the said premises unto the
said S. B. Burck, heirs and assigns, against
every person whomsoever lawfully claiming
or to claim the same or any part thereof.
"Witness my hand at Austin, this 14th day
of April, A. D. 1883.

“A. A. Burck. [Seal.]"; -which conveyance was duly acknowledged. On May 27, 1884, A. A. Burck made an as signment to Taylor and Babcock in these words:

152 U.S.

"Austin, Texas, May 27, 1884.

"For and in consideration of one dollar, in hand paid, and other valuable considerations I hereby sell, assign, and transfer to Abner Taylor, of the county of Cook, state of Illinois, and A. C. Babcock, of the county of Fulton, said state, all my rights, interest, and claim in and to the contract or contracts from the state 642 of Texas to build or erect a statehouse or capitol building in the city of Austin and last mentioned state derived from a contract or agreement made with Matthias Schnell in Chicago, Cook county, Illinois, bearing date January 31st, 1892, or any interest I may have for building or erecting a statehouse or capitol building in the city of Austin, Texas, derived from said Schnell at any time or from any other source, hereby relinquishing to said Taylor and Babcock all right or claim of any character to any and all contracts or agree ments that I may have heretofore had or now possess pertaining to building, erecting or constructing a statehouse or capitol building in the city of Austin, state of Texas.

Witness my hand and seal this 27th day of May, A. D. 1884.

"A. A. Burck. [Seal.]"; -which was also duly acknowledged."

in said profits after the said A. A. Burck had sold one half of his said interest to your orator, and therefore refuses to account with plaintiff; whereas the truth is that the said transfer by A. A. Burck to your orator, which has been herein before stated and made a part of this bill as an exhibit, was duly authenticated for registration in the office of the county clerk, and was duly recorded in the records of deeds of Travis county, Texas, on the 14th day of April, A. D. 1883, and said Abner Taylor then had notice of the same; whereas the said A. A. Burck did not sell or transfer any of his said interest in said profits to said Abner Taylor until the 27th day of May, 1884.

"That the said Abner Taylor ought not to be heard to aver that said registration was not notice to him of the said assignment by A. A. Burck to your orator, for that the formation of the copartnership between Matthias Schnell, Abner Taylor, Amos C. Babcock, Charles B. Farwell, and John V. Farwell, as hereinbefore alleged, wherein it was stipulated that the profits arising from building the capitol should be divided between said parties or with the assignees of either party, the said copartnership caused said contract of copar nership, which contained an assignment by said Schnell It further appears that the instrument dated of three fourths of his interest in said capitol January 31, by which Schnell transferred a contract, to be recorded in the register of deels three fourths interest in the contract to the two of Travis county, whereupon the said A. A. Farwells, Babcock, and Taylor, was filed for Burck, J. M. Beardsley, and James S. Drake, registration on February 13, in the office of acting on this means of giving notice of asthe clerk of the county court of the county of signments adopted by said *partnership.[6 3-4 Travis, that being the county in which the cansed their said assignment to be recorded in capitol building was situated, and thereafter the office of the clerk of the county court of recorded in the records of said county: that Travis county in the records of deeds; and afterthe instrument executed between Schnell, wards, when the said Schnell assigned his Drake, Beardsley, and Burck was also filed remaining interest in said contract, and in the and recorded in the same oflice on February profits that might arise from the fulfillest 14, 1982; likewise the assignment of May 9, of the same to the other members of saad ur.a 1882, from Schnell to Taylor, Babcock & Co. styled Taylor, Babcock & Co., the said tam on May 10, 1882, and the deed from A. A. caused said last mentioned assignment to be Burck to S. B. Burek, of date April 14, 18-3, also recorded in the said register of deeds is a on April 20, 1883; also the conveyance from means of giving notice thereof; that when the Burck to Taylor and Babcock. of date May said firm of Taylor, Babcock & Co, and the 27, 1884, on May 27, 1884. It also appears individual members thereof assigned their infrom the certificate of the comptroller of pub-terests in said contract to Abner Taylor, the lic accounts of the state of Texas that the defendant herein, they and said Taylor in their original contract of the state with Schneil, contract of assignment referred to the several together with the assignment from Schnell to mesne assignments of interests in said conthe two Farwells, Babcock, and Taylor, of tract as being of record in the office of the date January 31, the assignment, of date May clerk of the county court of Travis county, 9, from Schneil to Taylor, Babcork & Co., and referred to said records for full partien ars and the assignment from Tavlor, Babcock &us to said mesne assignments, whereby the said Co. to Abner Taylor, were all on file in his office, though when so filed is not stated. 643] With reference to the *effect of the filing in the office of the clerk of Travis county, the bill avers as follows:

parties concerned in said contract for building said capitol building agreed and established a custom mong themselves to give notice of assignments of interests in said capitol contract or in the profits that might arise from the ful "And your orator further says that the ac fillment of the same by recording such assigncount between your orator and defendant as ments in the records of deeds of Travis county, to this matter is still opened and unsettled. Texas, and by their conduct in so recording and that for reason why your orator should such assignments, and referring to said records not have an account or relief against him the and not otherwise giving notice of such assign defendant pretends that he had no notice that ments led your orator to believe and justified the said A. A. Burck assigned or tranferred him in believing that said partnership and its to your orator a one half interest in his, the assigns would take notice of the assignment by said A. A. Burck's, one sixteenth interest in said A. A. Burck to your orator when your the profits that might arise from the building orator placed the same on record in the records of said capitol contract, and that the defendant of deeds of Travis county, duly authenticated in good faith and without notice purchased for record; that your orator, fully believing from said A. A. Burck for a valuable consid that such record would be accepted as notice eration the said Burck's one sixteenth interest of the said assignment to your orator, caused

his said assignment to be promptly recorded in
the records of deeds of Travis county on the
14th day of April, 1883, which was more than
a year before the said Abner Taylor purchased
any interest from the said A. A. Burck.”
And with regard to the rights acquired by
defendant, through the conveyance of May 27,
1884, from A. A. Burck to him, it avers as
follows:

74 Tex. 454; Richardson v. Levi, 67 Tex. 361-
367; Watkins v. Edwards, 23 Tex. 447.
The rule that circumstances occurring in a
transaction which should put a party thereto
on inquiry, charge him with notice of all facts
which he might have learned if proper inquiry
had been made, applies to notices of assigu
ments of choses in action.

Anderson v. Van Alen, 12 Johns. 343; Hack. ett v. Martin, 8 Me. 77.

The fact that Taylor as a party to the con. tract by which Schnell transferred three fourths interest in the building contract to Taylor, Babcock & Co., agreed to the stipula

its between the parties "or their heirs or assigns" charged him particularly to make inquiry for assignments, and emphasized the significance of the terms of the assigument, tendered to Taylor by A. A. Burck by which Burck proposed to assign only his present interest or that which might thereafter accrue to him. The failure to make inquiry under such circumstances was negligence which prevented him from becoming a bona fide purchaser.

645] "And your orator further says that said assignment by A. A. Burck to Abner Taylor did not purport on its face to sell or assign to said Taylor the interests in the profits of said capitol contract which the said A. A. Burck had assigned to your orator, but only purport-tion in said contract for a division of the profed to assign to said Taylor whatever interest the said A. A. Burck had at the time of the said assignment to Abner Taylor, or might thereafter have; wherefor the said Abner Taylor, defeudant, was placed upon notice and inquiry as to whether A. A. Burck had parted with any of his interest before the assignment of his remaining interest to the said Abner Taylor, but the said Abner Taylor made no inquiry of said A. A. Burck as to whether he had parted with any of his, the said Burck's interest, nor did the said Taylor examine or cause to be examined the records of deeds of Travis county for any record of an assignment by said A. A. Burck, notwithstanding the said custom and practice of all the parties concerned in assignments affecting said capitol contract or interest in the profits thereof to record all such assignments and the agreement thereby affected to that (as their?) method of giving notice of assignments."

The bill further alleges the performance of the contract by Taylor, large protits as the result thereof, and prays an accounting.

Messrs. F. Chas. Hume and F. G. Morris for appellant.

The bill and exhibits show that the instrument under which Taylor asserts title is a quit claim, and that he took thereunder not as a bona fide purchaser, but subject to the prior assignment of A. A. Burck to Taylor, which purported to, and did, convey to the latter only the then present, subsisting interest of the former in the capitol construction contracts.

2 Pom. Eq. Jur. § 591, 626, 688, 695, 745, 752, 753; 1 Warvelle, Vendors, pp. 337, 338, $5; 2 Warvelle, Vendors, p. 615, § 13; 1 Devlin, Deeds, §§ 671, 674; Bishop v. Holcomb, 10 Conn. 446; Oliver v. Piatt, 44 U. S. 3 How. 409 (11: 656); Van Rensselaer v. Kearney, 52 U. S. 11 How. 322 (13: 713); May v. Le Claire, 78 U. S. 11 Wall. 232 (20: 53); Dickerson v. Colgrove, 100 U. S. 584 (25: 620); Baker v. Humphrey, 101 U. S. 499 (25: 1067); Alexander v. Rodriguez ("Villa v. Rodriguez") 79 U. 8. 12 Wall. 338 (20: 406); Brown v. Jackson, 16 U. S. 3 Wheat. 452 (4: 432); Runyon v. Smith, 18 Fed. Rep. 580; United States v. Sliney, 21 Fed. Rep. 95; Hastings v. Nissen, 31 Fed. Rep. 600; McClung v. Steen, 82 Fed. Rep. 374; Gest v. Packwood, 34 Fed. Rep. 372; Shepard v. Hunsacker, Posey, U. C. (Tex.) 579; Rodgers v. Burchard, 84 Tex. 452; Hamman v. Keiguin, 39 Tex. 42; Carter v. Wise, 39 Tex. 275; Harrison v. Boring, 44 Tex. 260; Milam Co. v. Bateman, 54 Tex. 169; Tram Lumber Co. v. Hancock 70 Tex. 313; Garrett v. Christopher,

Anderson v. Van Alen and Hackett v. Martin, supra.

In cases such as the present record presents, he who is first in time is first in right.

2 Pom. Eq. Jur. § 695; Thayer v. Daniels, 113 Mass. 131; Bush v. Lathrop, 22 N. Y. 535, 546; Conover v. Van Mater, 18 N. J. Eq. 481.

But whatever the true rule may be, it would seem to be indisputable, that, to say the least, the purchaser of a chose in action whose title can be adjudged superior to that of a prior assignee, by reason of the latter's failure to notify the debtor or trustee before the former's purchase and notification-must be a bona fide purchaser.

Spain v. Brent, 68 U. S. 1 Wall. 623 (17: 624); Judson v. Corcoran, 58 U. S. 17 How. 6:4 (15: 232); Ward v. Morrison, 25 Vt. 600; Loomis v. Loomis, 26 Vt. 203; Clodfelter v. Cox, 1 Sneed, 339-341; Judah v. Judd, 5 Day, 355; Bishop v. Holcomb, 10 Conn. 446; Van Buskirk v. Hartford F. Ins. Co. 14 Conn. 144, 36 Am. Dec. 473.

Mr. George E. Hamilton for appellee.

Mr. Justice Brewer delivered the opinion of the court:

That which arrests the attention is that, though the defendant furnished all the means and did all the work of building the capitol, and although the authorities of the state expressly recognized him as the contractor, bound in all respects to carry out the contract with the state in the same manner as the original contractor, and though he had no knowledge of any claim of plaintiff, the court is asked to recognize the latter as the owner of one thirty second of the profits of the *contract, [646 and to compel the defendant to pay him that amount. While only one thirty-second of the profits is asked for, the rule would be the same if thirty one thirty-seconds were sued for, and the first and principal question which arises is, whether these transactions between Schnell and A. A. Burck and between A. A. Burck and plaintiff had, with

out the knowledge of the defendant, operated by Mr. Justice Woods, observing in respect to create in the plaintiff a valid claim to a share thereto; of the profits. The contract in its twentysixth clause stipulated that there should be no assignment in whole or in part by the contractor without the consent in writing of the state authorities. No such consent was given to the assignment by Schnell to Burck, nor does it appear that the state ever in any form recognized the plaintiff, or his immediate grantor, as having any interest in, or control of, the contract, or any part thereof. He was to both the state and the defendant, who did the work, an unknown party until after the full completion of the contract, when for the first time he appears claiming an interest in the profits by virtue of an assignment and transfer, made before the work was done and in disregard of the terms of the contract.

"Interpreting the articles in the light of the statute, as it is the duty of the court to do, they were not intended to transfer, and do not transfer, to the plaintiffs any claim or demand, legal or equitable, against the United States, or any right to exact payment from the government by suit or otherwise. They may be fairly construed to be the personal contract of Peck, by which, in consideration of money to be advanced and services to be performed by the plaintiffs, he agreed to divide with them a fund which he expected to receive from the United States, on a contract which he had not yet entered into. This is the plainly expressed meaning of the partnership contract, and it is only by a strained and forced construction that it can be held to effect a transfer of Peck's contract with the United States, and to be a violation of the statute.

had to deal, and might alway know with whom it was dealing until the contract was completed and a settlement made. Their purpose was not to dictate to the contractor what he should do with the money received on his contract after the contract had been performed."

It is insisted that, tested by the rule thus laid down, this stipulation of clause 26 was one solely for the benefit of the state, and worked no restriction on the right of the contractor to dispose, in advance of the completion of the contract, of the profits which should enure therefrom.

It is earnestly insisted by counsel that this provision forbidding an assignment without the written consent of the state authorities, *We are of opinion that the partner-[648 was solely for the benefit and protection of the ship contract was not opposed to the policy of state; that it did not restrict or interfere with the statute. The sections under consideration the right of the contractor to dispose, in any were passed for the protection of the governway he saw fit, of an interest in the contract, ment. Goodman v. Niblack, 102 U. S. 556 or the profits thereof, so long as the party to [26: 229]. They were passed in order that the whom such transfer was made attempted no government might not be harassed by multiinterference with the actual work, and pre-plying the number of persons with whom it sented no claim against the state. The contract in the possession of the contractor was his property, and the profits arising therefrom, and any interest therein, were as much the subject of disposal as any other property, and the only limitation was one for the benefit of the state and could not be claimed by any subsequent assignee from the contractor. The case of Hobbs v. McLean, 117 U. S. 567 [29: 940], is relied upon as authority for this contention. In that case one Peck having, in response to an advertisement from the proper authorities, put in a bid for furnishing wood and hay to the government, and expecting that 647] the contract *would be awarded to him, entered into a partnership with McLean and Harmon, by which Peck was to furnish one half of the capital necessary to carry on the partnership business, and McLean and Harmon each one fourth, the profits and losses of the partnership to be divided in like proportion. The partnership was for the purpose of carrying out this expected contract. Subsequently, the contract with the government was obtained, and after it had been performed and the money therefor paid to an assignee in bankruptcy of Peck, the other partners, McLean and Harmon, filed their bill to recover their proportionate share of the profits as fixed by the terms of this partnership. Among the defenses was that the partnership was invalid by reason of section 3737, Revised Statutes, which reads as follows:

"No contract or order, or any interest therein, shall be transferred by the party to whom such contract or order is given to any other party, and any such transfer shall cause the annulment of the contract or order transferred, so far as the United States are coucerned. All rights of action, however, for any breach of such contract by the contracting parties, are reserved to the United States."

But this defense was overruled, the court,

We cannot concur in these views. By the section quoted not only was a transfer of the contract prohibited, but also the result of such a forbidden transfer declared. In terms it was said that any "such transfer shall cause the annulment of the contract or order transferred, so far as the United States are concerned." Expressio unius est exclusio alterius. The express declaration that so far as the United States are concerned a transfer shall work an annulment of the contract, carries, by clear implication, the declaration that it shall have no such effect as between the contractor and his transferee. In other words, as to them, the transfer is like any other transfer of property, and controlled by the same rules. Its invalidity is only so far as the government is concerned, and it alone can raise any question of the violation of the statute. The government in effect, by this section, said to every con tractor, You may deal with your contract as you please, and as you may deal with any other property belonging to you, but so far as we are concerned you, and you only, will be recognized either in the execution of the contract or in the payment of the consideration.

It is familiar law that not every contract in contravention of the terms of a statute is void, and the courts will search the language