Dale v. Kimpton

46 Vt. 76 | Vt. | 1873

The opinion of the court was delivered by

1’ecic, J.

The only question in the case arises between the plaintiff and the claimants of the. promissory notes executed by the trustees, Dyer & Clark, to John E. Kimpton, the principal debtor, and is, simply, whether the notice to Dyer & Clark, of the transfer of the notes to the claimants, Thomas Lynch & Co., was sufficient to protect the debt against the attachment by trustee process as the property of the principal debtor, the payee of the notes. No particular ceremony or form of words is prescribed or necessary to constitute the required notice ; but it must be such knowledge or information, communicated by the assignee of the debt, or by his procurement, to the alleged trustee, as gives him fully to understand that he, such assignee, is the owner of the demand. In determining the question of the sufficiency of the notice in this case, the whole transaction of the various interviews of the parties should be considered, as what transpired on the 2d and 3d of March has a bearing on the interpretation of what was said between Additon, a member of the firm of Thomas- Lynch & Co., and Clark, of the firm of Dyer & Clark, on the 10th of March. In view of what each already knew, there can be no doubt as to what Clark and Additon both understood by what was said be- • tween them at the interview on the 10th of March. When Additon — after Clark had told him Dyer & Clark bought the goods they were conversing about, of Kimpton — said to Clark, “ I suppose these are some of the goods bought of Kimpton for which the notes were given which we hold ; ” to which Clark replied, “ Yes ; I guess you have not got any better paymaster than you had before,” referring to Kimpton, there can be no doubt as to the number or identity of the notes referred to in the mind of both parties. It was not a note, but notes that were spoken of; and there were two notes, and only two, executed by Dyer & Clark to Kimpton, and they were given for goods sold by Kimpton 1,0 them; and no other notes are shown to have existed to which they could have referred. Nor is there any doubt but Additon, in what he said, used the word hold in the sense of ownership, or that Clark so understood it, as his reply as to the change of paymasters clearly indicates ; especially when taken in connection with what he knew of the efforts made by Thomas Lynch & Co. on the 2d and 3d of March to secure their claim against Kimpton. It is equally clear that it was his own firm that Additon referred to as holding the notes. The criticism of the plaintiff’s counsel upon the notice as being vague and uncertain, is not well founded on any fair and reasonable constrnction. The finding of the commissioner, that Clark understood at that time that Additon referred to those notes in question, was a necessary conclusion from the other facts he found, even if he had had no other evidence of it. The fact that this conversation was not intended by Additon as a notice of the transfer of the notes, and that he did not know that any notice was necessary, does not destroy its effect as a notice. If the notice was in other respects sufficient, it is not material that it should have been given for the purpose of protecting the debt from trustee process, or that it was intended as a notice for any purpose. The communication by which the information is imparted by the assignee of a chose in action to the debtor, of the transfer of it to such assignee, may be merely casual and for no definite purpose, and yet be sufficient notice to protect the demand from attachment as the property of the assignor, by trustee process. None of the objections made by counsel to the notice can prevail.

Judgment affirmed.