1 Nev. 331 | Nev. | 1865
Opinion by
concurring.
The first assignment of error which, we will notice in this case, is that the Court below erred in admitting the assignment of Harrub & Co. in evidence; first, because it was not properly stamped, and second, because it does not purport to be the assignment of Harrub & Co., but of one Walter Harrub. The statement discloses the fact that the assignments of the accounts of Harrub & Co. and Birdsall & Co. to plaintiff, were not stamped until they were offered in evidence, when, by permission of the Court, counsel for plaintiff attached the proper stamp to both assignments.
This mode of proceeding was entirely proper, and when an instrument is so stamped in Court it may be introduced in evidence as if it had been properly stamped at the time of its execution.
Statutes at Large for the years 1863 and 1861, page 295, section 163, expressly provides for the stamping of all instruments made prior to the 30th of June, A. D. 1864,' in the manner pmsued by plaintiff’s counsel in this ease.
The assignment of Harrub & Co. having been signed by Walter Harrub individually instead of in the firm name, seems to be cured in this case by the testimony of Mr. Call, one of the members of that firm, which clearly shows that it was intended as the assignment of the firm, though only signed by one of its members; the other members consenting to it, and charging the account so assigned to Carpenter on the- company’s books.
The question of whether the plaintiff should have proven the correctness of his book account, or that the entries were made at or about the time of the transaction, is a matter of no consequence here, as there does not appear to have been any objection of that kind taken in the Comt below, it cannot be passed upon here.
The plaintiff himself was also called, and testified that the
Whether this testimony is sufficient to sustain the judgment upon his account cannot be determined here, for the reason that there is nothing in the transcript showing that that was all the evidence to sustain it, and this Court is bound to presume that the findings of the Court below were sustained by the evidence, in the absence of evidence to the contrary.
"Whether Carpenter was the only pers'on interested in the accounts assigned to him cannot affect this case, for it is well settled that a note or account thus assigned may be sued upon by the assignee in his own name. If the assignors, ITarrub & Co. and Birdsall & Co., have any interest in the accounts assigned to Carpenter, he stands in the position of a trustee for them, and the statute expressly provides that “ An executor or administrator, trustee of an express trust or a person expressly authorized by statute, may sue without joining with him the person or persons for whose benefit the action is prosecuted.” (Statutes of 1861, p. 315, sec. 6.)
The judgment below must be affirmed.
