111 Mass. 285 | Mass. | 1873
The delivery of the book and order by the mother to the daughter constituted a valid gift inter vivas ; and this gift, being notified to the bank, was a complete assignment of her right to the fund. Kingman v. Perkins, 105 Mass. 111. Kimball v. Leland, 110 Mass. 325. The assignee could not indeed sue the bank at law in her own name, unless the bank expressly promised to pay the amount to her; but the assignment gave her the right to sue in the name of the assignor, or, after her death, of her administrator, with or without his consent; and the payment by the bank to him after notice of the assignment could not affect the rights of the assignee. Jones v. Witter, 13 Mass. 304. Rockwood v. Brown, 1 Gray, 261. Riley v. Taber, 9 Gray, 372.
The point, made in argument, that if the fund had been duly assigned to her, and sufficient notice given to the defendants, the action should have been brought in her name, is not open under the pleadings. The only allegations of fact made in the declaration and denied in the answer, are of the deposit by the mother, her receipt from the defendants of a book certifying the deposit, their promise to pay the amount to her, and her assignment of the book and fund to the daughter. The allegation in the declaration, and denial in the answer, that the defendants owe the amount to the plaintiff for the benefit of the daughter, are mere conclusions of law. Hollis v. Richardson, 13 Gray, 392. Framingham Bank v. Gay, 9 Gray, 241. If the defendants intended, to rely upon the dealings between their clerk and the daughter as amounting to a promise to pay the fund to her, whereby their original obligation to the depositor was discharged, they should have pleaded it. Gen. Sts. c. 129, § 26. Howard v.
