Bourne v. Cabot

44 Mass. 305 | Mass. | 1841

Shaw, C. J.

The court are of opinion, that the plaintiff is entitled to recover. The order drawn by Litchfield in favor of the plaintiff, and accepted by the defendant, has most of the characteristics of a bill of exchange ; but being drawn on a particular fund, and accepted conditionally, it is not, strictly speaking, a negotiable bill of exchange. But it has been held — probably in analogy to the case of a bill of exchange — that prima facie such an order is evidence of a consideration, without the words “ value received,” or other express evidence of consideration, so as to constitute it a good assignment. Adams v. Robinson, 1 Pick. 461. But being prima facie only, it is always competent to rebut the presumption of consideration by proof; in which case, such order should be construed to be an authority only, without interest in the payee, and so not an assignment. If the assignee of Litchfield could show that the order was given without consideration, or was otherwise fraudulent against creditors, it would appear that no interest in the fund passed to the plaintiff by the order and acceptance, and the assignee would be entitled to the balance in the hands of the defendant, for the benefit of the creditors of Litchfield. But that is a fact to be agreed or found by a jury.

It appears that long before the insolvency, the vessel in question had been conveyed, in due form, from Litchfield to Cabot, and the property in the vessel was thereby vested in the latter. • The interest of Litchfield was only in the fund to arise from the sale of the vessel, and secured by the agreement of July 3d 1840. This claim was a chose in action, a right to a sum of money, of uncertain amount at the time, but to be made certain afterwards. The order of Litchfield on the defendant was a gcfod assignment of the fund, pro tanto, to the plaintiff, and the express promise to the assignee, to pay him the balance when the vessel should be sold, constituted a legal contract; and on the happening of the condition gave him a right to maintain an action in his own name. Mowry v. Todd, 12 Mass. 281. Crocker v. Whitney, 10 Mass. 316. The order was drawn and accepted, August 4th 1840, and the proceedings under the commission of insolvency took effect on the 17th of August of the same year. It follows that the right of the plaintiff, pro tanto, to the fund in the defendant’s hands, vested before Litchfield’s insolvency, and of course the same did not vest in his assignee, by the proceedings under the insolvent law. To this extent, therefore, the defendant is -liable to the plaintiff, and not to the assignee.

Defendant defaulted.