their own possession of the original papers. It is true, in this part of the bill there is a statement that "said Abner Taylor then had notice of the same." This language, standing by itself, is open to a construction that actual notice was charged; but that no such construction should be given to it is evident from the paragraph immediately following, in which the pleader alleges that notice was given by filing and record, and states the reasons why such filing and record should be accepted as constructive notice. Indeed, we do not understand from counsel's brief or argument that there is a claim that there was actual notice given of these transfers.

Finally, it is claimed that the defendant was chargeable with notice because the assignment which he took from A. A. Burck on May 27, 1884, was really nothing but a quitclaim; that a party taking under a quitclaim deed cannot be a bona fide purchaser, but takes with notice of all limitations of his grantor's rights, and in respect thereto several authorities are cited from the state of Texas and elsewhere as to the rights of one taking under such a deed.

We do not care to enter into the consideration of this question; for, while the instrument is open to two constructions, yet, conceding that it in terms only quitclaimed, it took nothing away from Taylor's rights. It was not executed until two years and over after Schnell had parted with all his interest in the contract to Taylor, Babcock & Co., and it could not possibly have the retroactive effect of vesting in the plaintiff a right, as against Taylor, which he did not theretofore have. All that can be inferred from that instrument is that more than two years after Schnell had parted with his entire interest in the contract to defendant and his associates, and they had assumed full responsibility to the state, and nearly two years after defendant had accepted the sole responsibility of the contract, and after he had partially performed its obligations, he ascertained in some way the existence of an outstanding claim in favor of A. A. Burck, and, rather than litigate with him the validity of that claim, purchased it. It was not an admission that A. A. Burck had a valid claim to the extent of the attempted assignment from Schnell to him, and the fact that it was in the mere language of a quitclaim as likely resulted from the unwillingness of A. A. Burck to assume the obligations of a covenant or warranty as from any other reason.

In conclusion, we hold that by the nature of the contract as well as its express stipulation Schnell was incapacitated from transferring an interest therein without the consent of the state; that the attempted transfers from him to A. A. Burck and from A. A. Burck to S. B. Burck created simply a personal obligation, which could be enforced against him alone; that the assignments and transfers with the consent of the state

vested the absolute and sole interest in the contract in the defendant, Abner Taylor; that the latter took without notice of the plaintiff's claim; and that by his performance of the contract he acquired the right to the entire consideration promised by the state, and assumed no liability to Schnell, and no obligation to perform any promise which Schnell made to plaintiff or plaintiff's assignor. The judgment of the circuit court is affirmed.

Mr. Justice WHITE was not a member of this court when this case was argued, and takes no part in its decision.

Mr. Justice JACKSON, dissenting.

I am unable to concur in the opinion and judgment of the court in this case, and will briefly state the grounds of my dissent.

The case stands upon the bill, original and amended, and demurrer thereto. From the nature of the building contract between the state of Texas and Schnell, as well as the covenant contained in the twenty-sixth clause thereof, providing that the contract should not be assigned, in whole or in part, by the contractor without the consent in writing of the designated state officials, "with the advice and consent of the heads of departments,' the conclusion is reached by the court that "Schnell was incapacitated from transferring an interest therein without the consent of the state; that the admitted transfers from him to A. A. Burck and from A. A. Burck to S. B. Burck (complainant) created simply a personal obligation, which could be enforced against him alone; that the assignments and transfers with the consent of the state vested the absolute and sole interest in the contract in the defendant, Abner Taylor; that the latter took without notice of the plaintiff's claim; that by his performance of the contract he acquired the right to the entire consideration promised by the state, and assumed no liability to Schnell, and no obligation to perform any promise which Schnell made to plaintiff or plaintiff's assignor."

I find nothing in the allegations of the bill or in the exhibits, made a part thereof, which sustains the statement that Taylor "took without notice of the plaintiff's claim." The bill certainly does not admit that Taylor took the transfer to himself and Babcock from A. A. Burck without notice of the previous transfer to S. B. Burck. The other conclusions involve legal and equitable propositions, which, as applied to the admitted facts of this case, are not, in my opinion, correct.

There are important allegations in the bill, and provisions in some of the contracts, made exhibits thereto and parts thereof, which are admitted by the demurrer, but which are not noticed or considered in the opinion. By the contract of January 31, 1882 (Exhibit L), Schnell assigned and set over to Charles B. Farwell, John V. Far

well, Amos C. Babcock, and Abner Taylor "an undivided three-fourths interest in said [state] contract, for the purpose that the said parties of the second part may share in any and all the profits that may arise from same, the same as the party of the first part [Schnell] as their interests may appear, which is hereby agreed to be equal;" that is, the assignees collectively were interested in the three-fourths interest transferred to them. This contract further provided that the assignees were "to furnish whatever money may be needed or necessary for the proper construction of said statehouse, or for the execution of the said contract, as the same may be required from time to time." The sum of $13,000, which the parties acknowledged to be then due Schnell, was to be paid with interest "whenever the sum of $50,000 shall have been realized by the sale of lands named in said (state) contract." After the payment of that sum the contract provides "that the said parties of the second part are to have all the remaining profits until all the money advanced as above stipulated shall be paid, with six per cent. interest thereon per annum from the time said money is advanced; and all the other profits are to be divided as the interests of the parties appear under the contract or to their heirs or assigns. It is further agreed by and between the parties hereto that Amos C. Babcock, one of the parties of the second part, shall be the trus tee for the parties herein named of each part, to act as and be the trustee to receive the title to be conveyed in pursuance of the contract between the state of Texas and the said Matthias Schnell, and receipt for same to the proper officers of said state, and do all other things required of the said Schnell pertaining to the conveyance of the lands under said contract with the state of Texas or capitol building commissioners, and to hold the same, and to make such conveyances or sales of said lands, or any portion thereof, from time to time, as the parties hereto may direct."

and obtain their reimbursement from the sales of the lands to be received from the state in settlement for the work. It is equally clear that Schnell retained a fourth share of the profits that might be realized on the contract after refunding advances made by his copartners in completing the capitol building. Now, the state of Texas certainly had no concern with these private matters and agreements between the new contractors. It was not interested in, or in any way affected by, the relative or respective shares of the contractors in the profits which might be made. Neither had the state any interest in the question as to how, or among whom, such profits, if any, should be divided. These were matters to be settled among the copartners or associate contractors, and they were settled by them in the provision of their private contract, which provided that, after repaying the amount expended in constructing the state capitol, "all the other profits are to be divided as the interests of the parties appear under the contract, or to their heirs or assigns." It can hardly be doubted that this language permitted and provided for the assignment by either or all of the partners of his or their share in the profits, and that such assignee could equitably assert a right thereto against any person into whose hands such profits might come or be found, except a bona fide purchaser thereof for value without notice of the assignee's rights. Such an assignee of a share in the profits of the enterprise would have nothing to do with the execution of the state contract out of which profits might arise. Nor would he touch the state at any point, or in any way affect its rights, interest, or convenience. The contractor's covenant not to assign the building contract without the consent in writing of designated state officials did not extend to or cover an assignment by the contractor of a share or interest in the profits which it was expected would arise from the execution of the contract. The state had notice of the provisions of the private partnership contract, which included "assigns" among those entitled to share in the division of the profits; and in consenting to the ar

be fairly assumed to have assented to such provisions. The right to assign a share or interest in the profits was one of the terms of the copartnership which the state accepted as contractor in the place of Schnell. In thus accepting the firm as contractor, with notice that its members had provided for their "assigns" to share in the profits of the building contract, the state itself could not thereafter have objected to Schnell's assignment of his interest, wholly or partially, in the profits that the firm might make out of the contract, whether such assignment was made before the completion of the work or after.

Suppose the firm of Taylor, Babcock & Co.,

On May 9, 1882, Schnell, by written contract, transferred his remaining interest in the contracts (consisting of his claim of $13,000, and an undivided one-sixteenth interest or share in the profits that might be realized) to Charles B. and John V. Farwell, Abner Taylor, and A. C. Babcock, "who composed the firm of Taylor, Babcock & Co." In respect to this assignment, which the state approved, the original petition charges "that the said Taylor, Babcock & Co. received said assignment from Matthias Schnell of all his interest in said contract to complete said state capitol with full notice of the interest of said A. A. Burck, as hereinbefore alleged, an undivided one-half of which interest A. A. Burck subsequently transferred to plaintiff, S. B. Burck, as aforesaid; and that the said Abner Taylor had full notice of the interest of the said A. A. Burck at the time of the said transfer of Taylor, Babcock & Co. to him, the said Abner Taylor, and with full notice that by the terms of the agreement and assignment executed by and between said Matthias Schnell, of the first part, and J. M. Beardsley, James S. Drake, A. A. Burck, of the second part, that the same should be binding on and inure to the executors, administrators, heirs, or assigns of the several parties to the said contract."

Now, after this transfer by Schnell of his interest to the firm of Taylor, Babcock & Co., what was the situation in respect to the profits that might be realized from the building contract? It was clearly this: Taylor, Babcock & Co. thereafter held and owned the three-fourths interest acquired under the partnership contract of January 31, 1882, and one-sixteenth interest derived from the assignment of May 9, 1882, aggregating thirteen-sixteenths interest in the profits, leaving the outstanding three-sixteenths assigned to A. A. Burk and others by Schnell on January 31, 1882. The stipulations of the partnership contract were in no way changed or affected by Schnell's assignment of his remaining interest to the firm of Taylor, Babcock & Co. The obligation of Taylor and his associates, Babcock and the Farwells, to furnish the money required to complete the contract was not altered or abrogated in any way, and, if the contract had been completed by Taylor, Babcock & Co., the profits realized from the sales of the lands, after refunding the expenditures made in completing the contract, would have been distributable between the parties in the proportion of thirteen-sixteenths to Taylor, Babcock & Co., one-sixteenth to A. A. Burck, and two-sixteenths to the other two assignees of Schnell.

On June 20, 1882, the firm of Taylor, Babcock & Co. transferred the building contract to Abner Taylor, which was assented to by the state, and Taylor thereby became the contractor; but in so doing he did not cease to be bound by the terms of the partnership

contract under which Schnell retained his one-fourth interest in the profits, and a right to assign it, as he did. In other words, Taylor, in acquiring the shares of the members of the firm of Taylor, Babcock & Co., in no way either terminated or affected the interest of the parties holding the outstanding interests in the profits assigned by Schnell to A. A. Burck, with the knowledge and consent of both Taylor and the firm of Taylor, Babcock & Co. Nor did the transfer to Taylor by Babcock and the Farwells, as members of the firm of Taylor, Babcock & Co., in any way relieve Taylor from the provisions of the contract of January 31, 1882, which required himself and associates, other than Schnell, to furnish all the money needed to complete the building. The only ef fect of that transfer was simply to place Taylor in the shoes of Taylor, Babcock & Co., subjecting him to all the obligations resting upon himself and assignors, and affected by all the rights and equities which were binding upon the firm, not only in respect to the state, but as to all others interested in the result of the enterprise.

It is held, in the opinion of the court, that this assignment by the members of the firm of Taylor, Babcock & Co. to the appellee, Taylor, with the consent of the state, vested in him the absolute and sole interest in the contract, and profits arising therefrom, and that by his completion of the contract he acquired the right to the entire consideration promised by the state, and assumed no liability to either Schnell or to others claiming under Schnell. Schnell's assignee, holding the outstanding one-sixteenth interest in the profits, was no party to that arrangement. His rights were fixed by the partnership articles, and how and upon what principle can it be maintained that Taylor's acquisition of the interest of Babcock and the Farwells in the contract, and the profits thence to arise, can cut off this outstanding interest held by Burck? By taking the assignment from his copartners, Taylor was in no way released from the obligation to furnish money and complete the contract which rested upon the firm of Taylor, Babcock & Co.; and how is it, then, that by acquiring the interest of his copartners, he can terminate or extinguish the right of Schnell's assignee, previously acquired with the knowledge and consent of the firm of Taylor, Babcock & Co.? Can rights acquired with Taylor's knowledge and consent be cut off and extinguished by the private dealings between himself and partners, even though it be with the consent of the state? No such proposition can be sustained, either upon principle or authority.

By the transfer of April 14, 1883, from A. A. Burck to the complainant, S. B. Burck (Exhibit O), the latter acquired an undivided one-half interest in the one-sixteenth interest held by the former, and thereby became entitled to one thirty-second part of the profits