Fanton v. Fairfield County Bank

23 Conn. 485 | Conn. | 1855

Storrs, J.

We do not consider it necessary to determine whether, in the case of an assignment, made under the act respecting the settlement of insolvent estates assigned for the benefit of creditors, originally passed in 1828, (Rev. Stat., 1849, tit. xiv., chap. 4,) a notice of such assignment is necessary, in order to perfect it against either the debtors, or creditors, or'subsequent assignees of such debtor; nor in the case of an ordinary assignment, the effect upon a debtor of the assignor, of a notice of the assignment to a creditor of the assignor, previous to the factorizing of such debtor, by such creditor under our foreign attachment act; for if the assignment of the plaintiffs, in the present case, is to be considered as standing only on the ground of an ordinary assignment, it is clear, by the uniform course of our decisions, that if the defendants had notice of the assignment of a debt, due from them to the plaintiffs, before the copy of the factorizing process in favor of Bissell was left with them in service, or if Lyon, the assignee, within a reasonable time after the assignment to him, gave to the defendants notice thereof, the assignment vested in the assignee the equitable title to said debt, so that it could not, as against the assignee, either be lawfully paid to the assignor by the debtor, or factorized in his hands, by any of the creditors of said assignor. We are of opinion that the evidence adduced by the plaintiff, as it is reported to us, not only conduced to prove, prima facie, that the defendants had knowledge of the assignment in this case, when the copy of Bissell’s writ was left with them in service; but that the assignor also gave them notice of the assignment within a reasonable time; and that indeed the proof on these points was so strong that, if they had been submitted to the jury, and they had found a verdict in favor of the defendants, we should have felt bound to grant a new trial on the ground that it was against the evidence. That the defendants had knowledge of this assignment, before they were factorized by Bissell, is most dearly proved by the cashier of the defendants, who testified that, before the service of the factorizing process, he knew of the failure of the plaintiffs, and that-they had assigned their property to Lyon, which he must have understood to be a general assignment, and of course including the debt here in question, and that the failure and assignment was then a matter of public notoriety. The evidence is clear, also, to show that Lyon notified the defendants of the assignment within a reasonable time. There was no proof or claim of any unnecessary delay on his part, in giving them such notice, after he discovered their indebtedness to the plaintiffs. Nor did the evidence show that he was chargeable with negligence in not making that discovery sooner. Although the books and papers of the plaintiffs, to which he would naturally look for information as to the debts due to them, would probably have apprised him of a debt due from the defendants, arising from an ordinary deposit of money in their bank to the credit of the plaintiffs, that would not be the case with respect to a debt of the peculiar character of the one in question, which arose from their placing a sum of money in the bank, for the special purpose only of its being applied to the payment of a note, which was expected to be presented on the same day for payment, but which happened not to be wanted for that purpose. This sum would not then be credited to the plaintiff on the books of the bank, and it appears that it was not, until nearly two months afterwards. There was no proof that the assignee had any personal knowledge of any of the business transactions of the plaintiffs, or any particular means of knowledge as to the debt in question. It is to be considered, also, that he, as well as the plaintiffs, resided at a considerable distance from the defendants’ place of business, and in another town. On this evidence, which there was nothing to weaken, we think that the assignee did all in this respect that could reasonably be required of him.

We are of opinion, therefore, that the plaintiffs were entitled to have the evidence submitted to the jury on these questions, and that the superior court erred in refusing to set aside the non-suit which had been ordered in the case.

The judgment complained of is reversed.

In this opinion the other judges concurred, except Hinman, J., who was disqualified.

Judgment reversed.