59 N.H. 383 | N.H. | 1879
Although the contract for the sale of the brick, for a portion of the proceeds of which this action is brought, purports to have been made between McDonald Phelan and B. R. Dow by the defendant as agent of his father, it is evident upon the facts found by the referee that the defendant was the real party to the contract, and that all the parties so understood it when the written contract was executed. B. R. Dow had nothing to do with the negotiations, was not present when the contract was executed, and it was then understood and agreed that all payments were to be made to the defendant. He never saw McDonald Phelan until August, 1876, more than six months after the written contract was made, and at that time he told them to continue to pay the defendant as they had previously done for the brick he had sent or should thereafter send them. The waybills sent with the brick were in the name of the defendant, and were so made by B. R. Dow. The defendant assumed the performance of the contract, and when his father was unable to furnish the brick as fast as called for by the contract, he supplied them by purchasing from other manufacturers, not as agent of his father but on his own account. Upon these *385
facts it would seem that the money due from McDonald Phelan, for brick delivered under the contract, belonged to the defendant and not to B. R. Dow. In this action it is competent for the defendant to show the true character of the transaction, notwithstanding the written contract. Furbush v. Goodwin,
But regarding the transaction as a sale of the brick by B. R. Dow, the facts show a valid assignment of his claim against McDonald Phelan to the defendant. An assignment of a chose in action may be by parol. Thompson v. Emery,
Judgment for the defendant.
ALLEN and SMITH, JJ., did not sit: the others concurred.
