Central Bank v. Curtis
26 Conn. 533
Conn.
1857
Check Treatment
Hinman, J.

The question which has been principally discussed in this case is, whether by the instrument-dated the *54120th of October, 1855, the plaintiffs so far parted with their legal title to the claims in suit that they can not now maintain the action. It was obviously the intention of the parties that the suit should not be affected by that transaction ; because the instrument, after stating that suits had been brought on the notes and demands sold and transferred to Joseph A. Veazie, goes on to constitute Veazie the attorney of the bank, and to provide that “in its name and stead he shall hold, manage and dispose of said paper, notes and demands,” with power “ to prosecute any and all suits at law commenced by said bank for the collection of said demands, and to do any and all other acts, in the name of said bank, necessary or proper for the collection of said notes or demands, or any of them, for his own use and benefit.” And as the notes and bills were not indorsed by the bank, or in any way assigned except by the instrument referred to, they undoubtedly supposed that the legal title was not transferred in such a manner as to prevent the action from proceeding to final judgment, notwithstanding the cases of Lee v. Jilson, 9 Conn., 94, and Curtis v. Bemis, 26 id., 1. Still, had not the defendants been parties to the arrangement by which this transfer, as it is called, was effected, we might have had difficulty on this point; but from the facts found by the court we do not think this question is involved in the case. The instrument which has been referred to was made pursuant to an arrangement to which the bank and the defendants and Veazie were all parties, and it was then and there understood and agreed by and between them all, that the suit in favor of the bank was not to be discontinued, and that Veazie should hold the notes and bills as security for his debt against the defendants, and for the same purpose should prosecute this suit to final judgment, in order to make the attachment available as security for the payment of his debt; and he now prosecutes the suit under this arrangement. Now, after the defendants have been parties to such a contract, we think they are not in a situation to take advantage of any want of title in the plaintiffs, of which if the plaintiffs have divested themselves, it has been done at the solicit-. *542ation of the defendants themselves, and was induced by an agreement substantially that they would not take any such advantage of the fact as they are now attempting. The injustice of the course which the defendants are now pursuing is quite apparent. They are attempting to take advantage of the technical difficulty arising from the plaintiff’s want of title to the claims in suit, and in this way defeat one of the main objects of a contract to which they were parties, and which was entered into at their solicitation.

But the defendants contend that, as between themselves and Veazie, there was no consideration for the agreement, and therefore it is void as a contract, and can not operate as an estoppel, because Veazie is in no worse condition now than he would have been in if the arrangement had not been made. It is true that the property and money with which Veazie was enabled to satisfy the bank, and procure for his own benefit the notes and bills in suit, belonged to the defendants, and was furnished by them to be used in the purchase by Veazie of the defendants’ debts. But as Veazie was a large creditor of the defendants, he took upon himself the agency of purchasing up the defendants’ debts on such favorable terms as he could procure them, with a view to the security and eventual payment of his • own debt; and this property was placed in his hands to be used for this purpose. He was willing to perform this service in the expectation of procuring full payment of his own debt; and the defendants were desirous of obtaining the benefit of his services if he could be induced to render them under this expectation. When therefore he gave up the property in his hands in order to settle with the bank, he had a right to obtain such further security for his own debt as the defendants were willing to make him. His own debt might not have been any better secured by a mere promise to pay it. But it was consideration enough for any additional security he could obtain for it, just as it was a good consideration for payment of it, if the defendants had been willing to make payment. This arrangement between the bank and the defendants and Veazie was more than sixty days previous to the assignment *543by the defendants for the benefit of their creditors generally, and the attachment by the bank, being then of long standing, was not affected by that assignment. What objection then could there be, if the defendants had directly transferred the property attached to Veazie, in payment of his debt, on the extinguishment of the attachment 1 And if this could have been done, it seems clear that the same object might be accomplished by any lawful contract which the parties chose to make for that purpose. And as there was no objection at the time, growing out of the general assignment of the defendants for the benefit of their creditors, we do not see why the arrangement should not be carried into effect. Its object was to make the property attached by the bank available for the payment of Veazie’s debt, and thus carry out the defendants’ promise to pay Veazie in full. It may be true that the promise to do this was invalid, but, if so, it is because the defendants were, at the time, under as strong an obligation to pay the debt as the new promise secured to Veazie, and the arrangement to carry it into effect, therefore, was nothing more than an arrangement to pay an acknowledged debt. What reason the parties might have had for resorting to this circuitous mode of payment, rather than to apply the value of the property to the debt itself, we do not know, nor is it material. As there was nothing illegal in it, we think the defendants now ought not to object to its being carried out.

But it is insisted that the assignee for the benefit of- creditors is not affected by the defendants’ agreement. The assignment for the benefit of creditors generally, was made on the 28th - of January, 1856, more than three months after this contract between the defendants and Veazie, and the attachment by the bank was long before that; and as attachments of more than sixty days standing are not affected by an assignment, we do not see that the general assignee is in any better condition than the defendants themselves. It was suggested that the object of the parties was to cover up the property from Curtis & Co.’s creditors, but we do not think there is any evidence on which the *544court can. find this fact. Upon the whole case therefore, we advise the superior court to render judgment for the plaintiffs.

In this opinion the other judges concurred.

Judgment advised for plaintiffs.