Clough v. Giles

5 A. 835 | N.H. | 1886

The promise by the trustees to pay the contract price for the labor to the claimant, after the completion of the contract and the money was due, gave the claimant a right of action in his own name against the trustees. Boyd v. Webster, 58 N.H. 336. The money being earned, the debt was due, and was transferred from the defendant to the claimant, and there was a novation of parties and debt. The promise being to pay a debt already due completed the assignment, which, taking effect at the time of the promise, could not be one of wages to be earned; and the statute making invalid against the assignor's creditors assignments of wages to be earned in the future, unless accepted in writing and a copy is filed with the town-clerk (G. L., c. 249, s. 48) has no application. The promise to pay having been made, and the transfer of the debt completed before the service of process, the trustees must be discharged.

The plaintiff's argument, that the oral promise to pay the claimant, being after the written acceptance, required a new consideration, of which there was none, assumes the validity of the assignment and acceptance without record. The extinguishment of the trustees' debt to the defendant was the consideration of the acceptance. If the assignment and acceptance were, as against the plaintiff, void for want of record, it is, for the purposes of this case, as if no assignment and acceptance had been made, and the original debt of the trustees was not extinguished. The labor being completed and the debt wholly due, the oral promise to pay the claimant was upon the consideration of discharging the trustees' debt to the defendant, whose debt of equal amount to the claimant was discharged by the same promise and by his accepting the trustees as his debtors, thereby completing the transfer of debt and novation of contract and parties.

Trustees discharged.

CARPENTER, J., did not sit: the others concurred.