202 Mass. 263 | Mass. | 1909
The plaintiff’s declaration as originally drawn set forth a cause of action which had become vested in her assignors, Roberts and Langlands; and this is true also of her third count, which apparently was filed at the trial. Her right to maintain the action in her own name accordingly depends upon the provisions of R. L. c. 173, § 4: “ The assignee of a nonnegotiable legal chose in action which has been assigned in writing may maintain an action thereon in his own name, but subject to all defenses and rights of counterclaim, recoupment or set-off to which the defendant would have been entitled had the action been brought in the name of the assignor.” But the bill of parcels which she received from her assignors and the assignment of the cause of action which she took from them bear dates subsequent to July 16, 1907, which was the daté of her writ; there was no evidence that either instrument was delivered before that time; and there was direct evidence put in by the plaintiff that the assignment had been executed only a few days before the trial. Accordingly the plaintiff, when she brought
But the plaintiff had as bailee a special property in the fly wheel which is the subject of the action, and so might sue in her own name for the injui-y to it, and, at any rate, with the consent of the general owner, could recover full damages therefor. Brewster v. Warner, 136 Mass. 57. But it is difficult to see in 0 , her declaration, even with the amendment made after the trial and shortly before the allowance of the exceptions, a statement of any such cause of action. The averment is only of a wrong done to her assignors by an injury to their property. But passing over this objection, which does not appear to have been specifically taken at the trial, it is manifest that if she sued in her own right, it would be a defense if the negligence of herself or her agents or servants contributed to the injury. The jury might have found that there had been such negligence in Grady, her driver; and the defendant’s fifteenth request should have been given in substance. In any event, therefore, there must be a new trial.
As the case seems to have been tried upon the theory that the plaintiff could recover as assignee for the damage done to the property of her assignors, and as apparently only that question was called to the attention of the judge at the trial, it is not likely that the other questions presented will be raised again in the same way; and they need not be considered.
¡Exceptions sustained.-
