54 How. Pr. 422 | New York Court of Common Pleas | 1878
The plaintiff had a claim against one Chapman, and executed an assignment of it to the defendant, so as to enable him to maintain an action in his own name against Chapman for the recovery of the debt. The plaintiff claims that the assignment was executed pursuant to a previous oral understanding that one-half of the amount ultimately collected should be paid to him after its collection by the defendant. The defendant accepted the assignment, and commenced an action thereunder in his own name against Chapman, which resulted in a judgment in favor of Fullerton, the present defendant, which, after an appeal therefrom to the general term of the supreme court and the court of appeals, and an affirmance thereof by each of said courts, was finally collected by the defendant with the costs of affirmance.
The plaintiff now sues Fullerton, to recover one-half of the amount so collected, excluding the costs, upon the oral understanding which the plaintiff claims formed the real consideration for the assignment.
"Upon the trial evidence was given tending to prove the oral agreement alleged by the plaintiff which was met by the defendant upon his cross-examination entirely by want of recollection. No satisfactory reason is given why the plain
It purports to have been made “for value received,” but in what form or to what amount is not expressed, and the question presented is whether the proof of the oral agreement under such circumstances, on an issue like the present, violates the elementary rule of evidence before referred to. The principle established by the authorities seems to be, that if no consideration be expressed in a written agreement, or if it
In Durgin agt. Ireland (14 N. Y., 322) an attempt was made by the defendant to impeach the plaintiff’s title under an assignment in writing, under seal, absolute on its face, of a chose in action sued upon, by showing that the assignment ivas made upon the understanding that the moneys, when collected, were to be divided equally between the assignor and assignee, and the court of appeals held to the familiar rule that parol evidence was inadmissible in such an action to contradict a deed or other written instrument. This case was between the assignee of the chose in action on the one hand, and the person against whom the claim assigned existed on
'In Ford agt. Harrington (16 IF. Y., 286) it appeared that the defendant had been the plaintiff’s attorney in previous matters, and advised him to make an assignment to him, of a certain contract for the purchase of a farm, for the purpose of protecting it from his creditors, and the court of appeals held, that although the assignment was made for an unlawful purpose, that the relation of attorney and client, existing between the parties at the time of the assignment, distinguished the case from the ordinary one, of the transfer of property by a debtor
In the present case the relation of attorney and client existed between Fullerton and the plaintiff at the time the assignment was made. Fullerton was an attorney and the plaintiff was a layman, and technical rules, form no barrier to a recovery in a proper case, sustained as this is by what we deem competent evidence. In conclusion, we hold that-the evidence showing the true nature of the whole transaction (of which the assignment was only a part) was properly admitted, and that the technical rule excluding oral proof tending to alter or vary the terms or legal effect of the assignment was not violated upon the trial. The adjudication in the action brought by Chapman against Fullerton and Henderson to set aside the assignment in question as collusive and fraudulent is no bar to the present action. It is not an adjudication upon the rights of Henderson as against Fullerton, but merely as between them jointly upon the one hand, and Chapman upon the other, and is not in any legal sense res adjudicata as between the parties to the present action. The jury-having found the facts in the plaintiff’s favor upon conflicting evidence, and there having been no error of law committed upon the trial to the defendant’s prejudice, his motion for a new trial should have been denied. The trial justice erred in granting the order setting the verdict aside and ordering a new trial of the action, and his order must therefore be reversed, and the judgment upon the verdict permitted to stand.
Shea, C. J., and Alker, J., concurred.
The main question on this appeal is very satisfactorily disposed of in the opinion of justice Mo Adam at the general term of the marine court, reported above.
It is there shown that this action, in effect, is brought to recover from defendant the agreed consideration for the assignment to him, by the plaintiff, of the claim against Chapman, which claim defendant collected. The evidence offered by plaintiff on the trial does not in any sense tend to'vary the written instrument of assignment. To take an assignment absolute on its face of a chose in action, with an agreement fhat the assignee shall collect by suit and retain one-half the proceeds, and pay over the other half to the assignor, is to purchase the claim, and the consideration of the purchase is the promise to pay the moiety of the collection. The complaint alleged that cause of action, and plaintiff proved it. The exceptions remain to be considered.
The plaintiff proved a subsequent promise of defendant to pay on the occasion on which plaintiff sent to demand the amount sued for in this action. This was admissible as evidence of the original agreement to pay plaintiff half the collection; it was not offered in evidence as a distinct and original promise, and defendant’s objection to it that no consideration for it was shown, is not well taken.
The defendant proposed to contradict plaintiff, and so affect his credibility in the minds of the jury, by showing that he, plaintiff, was present at a reference when the assignment in this action was produced and put in evidence.
This evidence could not have the effect of impeaching plaintiff, because he had not sworn that the assignment was not so produced, but only that he did not recollect its produc
The most serious exception is that to the admission of the deposition of Richard H. Goodell. He had been examined before the trial, on behalf of plaintiff, de bene esse, under an order of the marine court, granted upon an affidavit, which did not state or show that he then contemplated an absence from the state (2 R. S., 392). It only set forth that he was then about to leave the city for Genesee county, where he expected to reside until the ensuing fall. The objection to the sufficiency of the affidavit was taken upon the examination under the order, but the examination proceeded, and it then appeared from Goodell’s testimony that he intended to go from Genesee county to Canada, and afterward to Michigan, and did not expect to be back until the autumn. This did not cure the defect in the affidavit, and if a motion had been made by defendant before trial to set aside the proceedings and take the examination off the files of the court, or to suppress it, such motion would, no doubt, have been granted. Defendant made no such motion, however, and we are now called upon to decide whether in the exercise of such a discretion we should order a new trial, because the judge who presided at the trial overruled the objection made to the examination for defect in the affidavit and allowed the testimony given by Goodell de bene esse to be read to the jury. If we are of opinion that substantial justice does not require that a new trial of this case should be had, we may disregard the error committed by the judge in admitting the deposition (Code, see. 1003, secs. 995, 996). The evidence of Goodell was material; it related to an interview with defendant as to which defendant could and did testify at the trial, so
I am in favor of affirming the judgment.
Judgment affirmed, with costs.
Daly, O. J., filed a concurring opinion to the same effect.
Judgment affirmed, with costs.