Chapman v. Plummer

36 Wis. 262 | Wis. | 1874

Cole, J.

The learned counsel for the plaintiff states in his brief, that the only point of contention between the parties is, whether the claim for rent constituted a proper counterclaim-or setoff in favor of the defendants. He insists that it did not: 1. Because the evidence shows that the claim had been paid and discharged before the commencement of this action; and 2. That it had never been assigned and transferred to the defendants so as to constitute them the real owners, and hence that they could not avail themselves of it as a counterclaim or setoff. These objections will be considered in the inverse order in which they are here stated.

The case shows that this claim for rent belonged to Fisher and Jones as tenants in common, and not as partners. And it is objected that Fisher had no authority to sell and transfer it in their names to the defendants, as he attempted to do. Whether Fisher had any authority in the first instance, either as partner or tenant in common, to sell and transfer the interest of Jones in this .account, se.ems to us to be an immaterial question, in view of his uncontradicted testimony that he notified Jones of such assignment soon after it was made, and that he assented to it. This amounted to a complete ratification by Jones of the act of Fisher, upon notice of all the facts. And, having adopted and confirmed the assignment and transfer, he was bound by it. He could not afterwards revoke and recall it, as he attempted to do by settling this claim with the plaintiffs in June, 1873. The account did not then belong to him, and he had no .interest in it, since it had been previously assigned, with his ratification and consent deliberately given upon a full knowledge of all the material facts. It seems to us that this was as effectual to transfer his interest in this claim as though he had himself executed an assignment of it.

It appears that the method-of transfer was by crediting Fisher & Jones with the amount on the books of the defendants at the time the assignment was made, and charging the plaintiffs with the same. Whether any entry was made of the transfer upon the books of Fisher & Jones, does not appear. But it is now insisted that this method of transfer was insufficient-in law to pass the title of the chose in action or account to defendants. It is said there must be some formality further than was proved in the case,' to transfer to and invest in a purchaser-the right to maintain an action on a mere liability resting on no writing, record, or memorandum.

The claim of Fisher & Jones against the plaintiffs for rent was a mere matter of account, or a chose in action. We are not aware that any particular formality is necessary to effect the transfer of such a claim. “ Any transaction between the contracting parties, which indicates their intention to pass the beneficial interest in the instrument from one to the other, is sufficient for that purpose ; a debt may be assigned in equity by parolas well as by writing.” Slaughter v. Faust, 4 Blackf. R., 379. “Under tbe code, an assignment valid as an equitable assignment is equally valid at law.” Hooker v. Eagle Bank of Rochester, 30 N. Y., 83; sections 1, 2 and 13, cb. 122, R. S. See also Ford v. Stuart, 19 Johns., 342; Hinkle v. Wanzer, 17 How. (U. S.), 353; Rupp v. Blanchard, 34 Barb., 627; Arnold v. Johnston, 28 How. Pr., 249.

There is no pretense that the assignment was not in good faith made with the intention of passing the title to the account to the defendants. The assignors relinquished all control over it and all interest therein, and were credited on the books of the defendants with the amount. The fact that Fisher is a member of the firm of Plummer & Fisher is of no importance. The claim now belongs to the latter firm, and has since it was assigned by Fisher & Jones in July, 1872. We have already stated that the evidence shows that Jones- sanctioned and approved of the assignment about the time it was made. He, in legal effect, assumed to look to the defendants for the payment of his share of the rent.

If we are right in the views above expressed, then it is very plain that Jones had no right to settle and discharge this debt for rent in June, 1873. He was not then the owner of any part of that indebtedness, and his attempt to discharge it was without authority, and did not bind the defendants. And it is a significant fact that the plaintiffs knew in December previous that the defendants claimed to own this account for rent. They knew, or ought to have known, 'that Jones had no right to discharge it.

By the Court. — The judgment of the county court is affirmed.