Dubois v. Doubleday, 9 Wend. 317

Dubois v. Doubleday

9 Wend. 317 | N.Y. Sup. Ct. | 1832

By the Court,

Nelson, J.

The case of Compton v. Jones, 4 Cowen, 13, decides that the assignee of a chose in action may maintain assumpsit in his own name to recover the amount, upon a promise to pay him by the original debtor, and this, where the contract assigned is a specialty. It is at least questionable, if this action could be maintained in England, though the cases in this country which sustain the doctrine profess to be based upon the case of Fenner v. Meares, 2 Black. R. 1242. The difficulty in the case is the want of consideration to support the promise to the assignee, and without which no assumpsit can be sustained upon the principles of the common law. The elementary books are against the action. 1 Chitty, 10, 94, 5. In all the cases in which the assignee has been permitted to bring the action in his own name, there has been an express promise alleged and proved; and without which it is clear the suit cannot be maintained. In this case there is not sufficient evidence even to raise an implied promise, and there is no pretence for an express promise. The fact of .the defendant’s having paid part of the bond to the plaintiff, should *319not have the effect to raise the implied promise, because after notice of the assignment, the law obliged him so to pay it. This would be a new invention to create a promise, with a view to sustain the action. The memorandum in the hand writing of the defendant, for aught that appears, may have been a private one, as it is in no way connected with the adjustment of the accounts of the parties.

New trial granted.