11 N.H. 218 | Superior Court of New Hampshire | 1840
It is settled that a promissory note, made by the defendant to a third person, or order, and indorsed to the plaintiff, may be given in evidence under a count for money had and received. 5 N. H. Rep. 557, Tenney vs. Sanborn. There are undoubtedly objections to this rule, as such a mode of declaring gives the defendant no accurate information upon what the suit is in fact brought ; but the rule is too well settled, here and elsewhere, to be set aside without legislation, or some rule which shall affect only cases which occur afterwards.
Had the plaintiff been the actual owner of the note in question, therefore, neither the defendant, nor Eastman as a subsequent attaching creditor, could have objected to a judgment for this note, along with the other demands, provided the third count was in truth inserted with the purpose of covering and securing it.
A long practice also has sanctioned the institution of suits, upon negotiable notes, in the names of third persons, to whom they are indorsed for the mere purpose of having suits commenced in their names, and who have in fact no interest in the suit except as trustee. And it has been held, in Massachusetts, that this furnishes no objection to the maintenance of an action. 7 Pick. R. 40, Bingham vs. Marean. Notes are often indorsed in this way for the mere purpose of collection. We are not disposed to give any encouragement to this course where it is resorted to for the purpose of rendering it less easy for the defendant to make his defence.
There seems to be no reasonable doubt, however, that Badger, when he drew the writ, intended the count for money had and received, not as a further declaration upon the notes of Stevens by way of precaution in case there was any defect in the special counts upon those notes, but as a declaration on his own note, or to cover that note. He did not disclose this to Stevens, or to the officer; and to the latter he spoke of the suit as if it was in fact Stevens’ suit. But he testifies, explicitly, that he inserted that count as a declaration upon the note to himself; and he is corroborated in this by his statements, made to the defendant at the time of the service of the writ, to the individual who receipted on the same day for the property attached, and who had an interest in ascertaining the amount of the demands, and to others also.
The fact that he did not inform Stevens, or the officer, cannot show that he did not intend to institute the suit on this note along with the others.
The main question in the case is, therefore, who has the right to control the suit thus instituted ; Badger, who made the writ, or Eastman, who now has Stevens’ interest in the notes, and claims to exercise all the rights that Stevens himself might have exercised in relation to it ?
Had Stevens caused a suit to be instituted in his own name, and had Badger without his knowledge put into it a count, general or special, for the purpose of covering a demand belonging to himself, we have no doubt that Stevens might have controlled the suit, discharged the attorney, and
But the plaintiff on the record, it is admitted, is a man of straw. Had Stevens directed the suit commenced in the name of a nominal plaintiff, to whom he had indorsed the notes for that purpose, and to whom he was responsible, he must have been permitted to manage the suit as if it had been in his own name. In this case, however, Badger provided the image which is set up. The plaintiff is his legal automaton. He is responsible for the use which is made of the plaintiff’s name, and bound to indemnify him.
Stevens, in committing his notes to Badger, and indorsing them so that Badger might bring a suit in this mode, gave Badger the same right to control the suit that he would have had if the notes had been indorsed to himself for a like purpose. And we think there can be no question that if the notes had been indorsed to Badger, with the intention of having a suit brought in his name, he would have had the legal right to include a demand of his own in any suit which he might thus institute, and to manage the suit for the purpose of collecting that also, being liable to Stevens, in damages, if he neglected his interests in the matter. Stevens in that case could not have claimed to take the suit out of Badger’s control, because it would be the suit of the latter. And so in the present case, as Badger has undertaken to collect the notes of Stevens, by bringing a suit in the name of a third person with whom Stevens has no concern, and over whom he has no control, but to whom Badger is responsible, Stevens cannot claim the control of the suit thus instituted; but he, or Eastman, his assignee, must rely upon a remedy against Badger, if he, by any neglect of duty, or by an attempt to collect his own demand, defeats the collection of the notes thus intrusted to him.
Eastman, as assignee, can have no greater rights than Stevens himself could have had if he had retained his interest.
There must, then, be judgment for the plaintiff for the amount of all the notes.