Heath v. Powers

9 Mo. 765 | Mo. | 1846

Napton, J.,

delivered the opinion of thte court.

This was an action of debt brought by R. B. Heath, to the use of Browder, administrator of Jonas Heath, deceased, against Powers, on a bond executed by said Powers and one Ashley, to said R. B. Heath.

The defendant pleaded first non est factum, and second, that the bond mentioned in the declaration was executed by the defendant to the plaintiff, in part consideration of the sale of a certain tract of land sold by the plaintiff to the defendant; and that by a decree of the Benton circuit court, rendered on the 9th December, 1844, in a certain chancery cause, wherein the said defendant and Ashley were complainants, and the said plaintiff and Charles S. Waters were defendants, said bonds were cancelled, &c.

Plaintiff replied, that at the time and before the commencement of the said suit in chancery, Browder, admr. &c., for whose use this action was brought, was the equitable owner of the said bond, and that the said bond had been transferred by the said Richard B. Heath, to the said Jonas Heath, in the lifetime of the said Jonas, (the intestate of Browder,) by delivery, for value received by the said Richard, of the said Jonas; that the said assignment was made before the commencement of the said chancery suit, and that said Browder was not made a party, nor had he received any notice of said suit.

To this replication there was a demurrer, which being sustained, the plaintiff withdrew his other replications, and judgment was given on the demurrer for the defendant.

The only question is, whether the demurrer was properly sustained.

In Bates against Martin, (3 Mo. R. 367,) it was held that payment of a bond or note to the assignor, after assignment, would be no bar to an action by the assignee, whether the assignee had given notice to the maker previous to the payment or not. This construction of our statute concerning assignments, has been subsequently recognized by this court in the case of Cohen v. Per. Ins. Co., 9 Mo. R. Our statute, however, requires the assignment to be in vmting, an.d though that writing may be on a separate piece of paper,'as was held in the case of Isbell & Abel vs. Shields & Hickerson, (7 Mo. R.,) yet the writing itself must show that it has been made, and therefore an assignment in general terms of all the assignors goods, effects, &c., will not constitute such an assignment of a specific note, as to be within the meaning of the statute, and enable the assignee to maintain an action in his own name. Miller v. Paulsel & Newman, 8 Mo. R. In the case now under consideration, the assignment was a mere equitable one, by delivery, and though courts of law will protect the interests of such an assignee, it is clear, that we are not under any obligation to apply the principles heretofore, and yet held by this court in relation to assignments in writing. The cases hitherto have been such as the court thought affected by the phraseology of our statute, and the rule which seems to have prevailed very extensively elsewhere, was made to yield to the imperative commands of the statute, which seemed to preclude the obligor from anywise affecting the rights of the assignee after assignment. We are then thrown back upon the equitable principles which govern courts of law, in protecting the assignee of a chose in action, and that principle requires the assignee to give notice of his interest, otherwise a payment to the obligor, or a discharge by him, will defeat it.

The plea in this case is like a plea of payment; and the republication should have averred, that at the time of the commencement of this chancery suit, or at all events prior to its termination, the defendant had notice of Jthe interest of Jonas Heath. Dawson v. Coles, 16 John. R. 51; and Cowen & Hill’s notes, Ph. Ev. p. 164, 975, and numerous authorities there cited.

The demurrer was therefore properly sustained, and the judgment of the circuit court is affirmed.