Fourth National Bank v. Noonan, 88 Mo. 372

Fourth National Bank v. Noonan

88 Mo. 372 | Mo. | 1885

Black, J.

This suit is based upon a note made by the defendant dated April 30,1877, maturing June 24,1877 for twenty-four thousand dollars and payable to plaintiff. *376The petition gives credits for proceeds of certain collaterals and demands judgment for some nine or ten thousand dollars. The suit ivas begun in 1882 and the cause came on for trial March 20, 1883, when the defendant filed a second amended answer. The third and fourth defences, set up for the first time in this amended answer, are based upon the. following facts as disclosed at the trial. Noonan, the defendant here, sued Berkley before a justice of the peace, and on the return day of the writ, which was the clay before the present suit came on for trial, Berkley appeared before the justice and filed an off-set and judgment was at once entered for Berkley against Noonan for fifty dollars, being the excess of his demand after having remitted enough of the off-set to bring it within the jurisdiction of the justice. The document filed by Berkley as an off-set was signed by plaintiff’s president and is as follows :

“ St. Louis, April 6, 1880.

“In consideration of two hundred and fifty dollars, in hand paid by William J. Berkley, we do hereby assign and transfer to him five hundred dollars out of any proceeds he may collect from T. S. Noonan on his note dated April 30,1877, for the sum of twenty-four thousand dollars due five days after notice, now held by us. But this agreement shall not apply to any proceeds realized on col-laterals pledged to secure said note; the right to realize on said collaterals being reserved to us exclusively.

“John O. H. D. Block, Pres.”

1.. The contention that this paper operated as an assignment of the whole note cannot be maintained. It does not purport to transfer the note, or even the whole of the proceeds. The contrary intention is clearly expressed. The only doubt that can be entertained is whether it assigns a part of the note, or only a part of the proceeds when collected, leaving the title to the whole note as well as the'possession with the bank. *377Taking the paper as a whole we think it should be regarded as an assignment of five hundred dollars, a part of the note. This is certainly the most favorable view to the defendant. Now it has been held several times in this state'that a judgment creditor cannot assign a part of the judgment, so as to be binding upon the debtor without his consent. The debtor has a right to pay the debt as a -whole. He may settle with the creditor though he has notice of the assignment. As to him such partial assignment is invalid. Love v. Fairfield, 13 Mo. 301; Burnett v. Crandall, 63 Mo. 410 ; Loomis v. Robinson, 76 Mo. 488. The same is true with respect to a note or other entire debt. Beardslee v. Morgner, 73 Mo. 23. These cases all proceed upon the theory that the debtor does not consent to the division of the debt, or to the payment of it in parcels. If he sees fit, he may waive his right to resist payment in fractions. He may consent to the partial assignment, and if he does he ought not to be heard to complain. The statement of the off-set filed with the justice to which this assignment was attached only claimed an interest of five hundred dollars in the note sued upon in this case. The defendant here not only failed to resist the off-set, but appeared and acknowledged it to be correct. He must be taken to have given his assent to the partial assignment. By the operation he paid four hundred and fifty dollars with a demand of two hundred dollars, and now seeks to avoid on the same ground the payment of nine or ten thousand dollars. This he should not be permitted to do.

The judgment of the court of appeals, reversing-that of the circuit court, is affirmed.

All concur.