57 N.Y. 229 | NY | 1874
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *231 The judge at the circuit withdrew all the questions contained in this case from the decision of the jury, except the single one of the amount of damages. His professed object was to enable a full review to be made of them in the appellate court. He was requested to charge on the following points, among others: (1.) That if the jury believed that Mr. Dodge represented Crawford and Wheeler and Fuller, that the plaintiff cannot recover. (2.) That if they believed that Mr. Fuller was jointly interested with Mr. Crawford or Mr. Wheeler or both of them in the purchase of *232 the judgment, the plaintiff cannot recover. (3.) That if they believed on this evidence that Mr. Fuller and Mr. Wheeler had notice of the circumstances under which the assignment was obtained, the plaintiff cannot recover. (4.) That if the broker represented them, as their agent, then they had notice. Each of these requests was refused under due exception. They were not mere abstract propositions of law, as under a certain view of the evidence, they became material to the cause. It will only be necessary to consider these questions, and whether the judge erred in his rulings as to any of them.
This was an assignment of a judgment, a transaction which, prior to the Code, had no existence in a court of law and was only recognized in equity. Since the Code, the assignee takes his interest subject to the equities between the original parties. Though the judgment itself is perfectly valid, yet any equities which affect the assignment must bind the assignee, even though he acted in good faith. If, for example, there is any equitable defence to this assignment toward Wheeler, Fuller must stand in his place, even though he took his title from Bill, who advanced the money to pay for his interest. No one of the assignees can occupy any better position toward this judgment than Wheeler himself held. This rule is perfectly well settled as to the assignees of mortgages. (Bush v. Lathrop,
There was evidence in the case given by Fuller, that he was informed, when he took the assignment by Crawford, that Dodge had negotiated the transfer in behalf of a client of his, Edward J. Wheeler. Dodge swears that he bought the judgment for Crawford. Wheeler testifies that Crawford made the purchase on his account. There was abundant evidence to submit to the jury that Dodge was acting for Wheeler. On that supposition, the knowledge of Dodge must, of course, be imputed to Wheeler.
The case thus becomes reduced to an inquiry as to the position of the parties, on the supposition that the defendant and Wheeler had been negotiating this transaction together.
Wheeler, through Dodge, proposed to purchase a "Tanning Company" judgment. It was well known what judgments of this kind were, that they were of doubtful value and to be sold only for a nominal price. Ward was to sell one. It was well understood that the negotiation was to be made with Ward as owner. The proposition was to buy of Ward a certain kind of judgment, which he was understood, both by the proposer and by Ward, to own, and to which, it *234
was also understood, that the defendant held only a nominal title. What was, in fact, assigned, was a judgment belonging to the defendant, in which Ward had no interest, and not belonging to the class referred to. It is as though A. was a bailor of a horse in the constructive possession of B., a bailee, and C. made a proposition to B. to purchase it as belonging to A., by indicating certain marks upon it which neither the bailor nor bailee remembered. Let it be further assumed, that the bailee signed a bill of sale as having a special property in the animal, and that it turned out contrary to the understanding of all parties that the animal, possessing the specified marks, really belonged to B., and that while meaning to aid in the sale of A.'s horse, and being so supposed by C. to act, B. had really sold his own. Would that be a sale? Do the minds of the parties meet in such a case? Suppose that in the present case, the "Tanning Company's" judgments had been valuable, and the judgment held by Guild, as assignee of Boyden, of little worth, would Wheeler have been bound to take the latter under the same state of facts? The case is one of error as to the subject-matter of the contract. To make a valid contract, the minds of the parties must meet, and both must intend to enter into the engagement expressed by the terms of the contract. (Dana v. Munro, 38 Barb., 528;Baldwin v. Mildeberger, 2 Hall, 176; Saltus v. Pruyn, 18 How. Pr., 512; Scrantova v. Booth, 29 Barb., 171; Booth v.Bierce,
For this error there must be a new trial, and it is unnecessary in this aspect of the case, to consider the other questions raised on the argument.
The judgment should be reversed and a new trial ordered.
All concur.
Judgment reversed.