17 Wis. 436 | Wis. | 1863
By the Court,
It is too late, at this stage of the cause, to object that there is a defect of parties defendant. Whether, therefore,-it would have been requisite to make the creditors of Jenkins, Barringer & Co. parties, ha,d the objection been seasonably taken, we shall not stop to inquire. Our statute requires that when there is a defect of parties, the objec
It is quite clear that the instrument sued on operated as an assignment of the special fund in the hands of the assignee belonging to the Iowa County Bank. But it is insisted that the assignment was subject to equities existing between the bank and Jenkins, Barringer & Co., and that if the latter could have successfully resisted the collection of the account in favor of the bank, the assignee can. And that Jenkins, Barringer & Co. could have prevented a payment of this account, is said to be most manifest, since there was a failure of consideration for it, inasmuch as the bank made no provision for meeting the drafts at maturity. If this were all there was of the transaction, and Jenkins, Barringer & Co. had said or done nothing which estopped them, or any other person representing their interest, from saving that they did not owe the bank anything, then this proposition could not be contested. But how stand the facts? Jenkins, Barringer & Co.make an assignment of their property for the benefit of their creditors. In the assignment they represent that they owe the bank the amount of this account, and place the bank among their list of preferred creditors. This was before the time drafts sold by the bank to Jenkin, Barringer & Co. matured, and when the latter could have raised no legal objection to the collection of the account. At this time, the respondent purchased of the bank the special fund in the hands of the assignee for its full value, and in good faith. He undoubtedly then trusted to and relied upon the representation contained in the assignment, that Jenkins, Barringer & Co. owed the bank $558.04. Had he not a right to rely upon this written representation in the assignment to that effect, and act upon it ? It appears to us he had. Suppose Jenkins, Barringer & Co. had made no assignment, but the respondent had gone to them on the 11th of September, 1861,
Some stress is laid upon the clause in the assignment which directs the assignee to pay the debts due the persons and firms designated in schedule No. 1, “ all the payments to be made according to the amount actually due to the several persons and firms, whether correctly stated in said schedule class No 1,
A still further objection is, that the action is against.the appellant personally, while the judgment is against him in his fiduciary character. We do not so understand the complaint. The suit is against the appellant as assignee, and the judgment appears to be in proper form.
Eor these reasons the judgment of the circuit court is affirmed.