Loomis v. Loomis, 26 Vt. 198

26 Vt. 198 | Vt. | 1854

The opinion of the court was delivered by

Isham, J.

We perceive no objections to the admission of tbe declarations of L. A. Loomis, though they were made after the dissolution of the firm of Loomis & Jackson, and subsequent to the assignment to Charles Jackson. An admission by one partner, made after the dissolution of the firm, in regard to the business of the firm previously transacted, is admissible as evidence against all the partners, and binding on the firm. Gay v. Bowen, 8 Met. 100. Bridge v. Gay, 14 Pick. 55. 3 Steph. N. P. 2425. Pricherd v. Draper, 1 Russ. & Mil. 191-200. Goddard v. Ingram, 3 Adol. & El. N. S. 839.

L. A. Loomis is one of the plaintiffs of record, and as a general rule, his declarations are admissible, not only against himself, but all others, who have such a joint interest as will enable them to join in the suit. They are not to be treated as nominal parties merely, who have any interest in the amounJ^wxwgfiis^; though that interest may be in the surplus, afifer ttug$%Ai^b»^specific debts, for which the assignment is made. 1 Greenleaf’s Ev. § 171. 1 Maule & Selw. 249.

Those declarations are not rendew*UÍMdn8s¿Lble, inconsequence of the assignment of this clainalby tlmblamtí^'^ (Miarles Jackson. No notice of that assignment -ros wergwen to th^efendant. It is regarded as a settled rule, thaPífa&Já^e^Sñ^signee to a chose in action is not complete, except as against tie assignor, until notice of the transfer has been given to the debtor. Such notice is required to perfect the title of the assignee, and is as necessary, for all purposes, and for the same reason, that a change of possession is required, on the sale of personal property. Vanbuskirk v. Hartford Ins. Co., 14 Conn. 141. Until notice has been given, the assignee holds the claim subject to such defence or dealing, as may exist or arise between the original parties. A release, or a receipt executed by them, or either of them, will be good as against the assignee; and any payment to them, or either of them, will be a good discharge of the debt. Campbell v Day, 16 Vt. 558. If either can discharge or receive payment of the debt, it would be inconsistent to say, that they could not acknowledge it, and that such admissions, would not be proper evidence of the fact. The truth is, that until notice of an assignment has been given, the same evidence, that would be admissible as- between the original parties, is admissible as against the assignee; for until such notice, the rights and interest of the debtor are in no way affected by the assignment. As those declarations would have been admissible if no assignment had been made, they are equally admissible now, as no notice of that transfer was given the defendant.

Neither are those declarations rendered inadmissible, as tending to impeach, alter, or vary the terms of the written agreement in relation to the sale of brick. The object of the testimony was to show a payment of this account, by applying the same on the claim due to the defendant, for the brick delivered under that written agreement. It is not pretended, that the contract for that application was made, when that agreement was executed. It is true, an arrangement of that kind was then proposed, and requested, by all the partners; but the defendant, at that time, refused to enter into such an arrangement, and the matter was ended. The admissions were offered to show a subsequent contract for the application of this account in that manner, made when the goods were delivered, with the knowledge and consent of all the partners. That a subsequent agreement of that kind will be binding, there is no doubt. 1 Greenleaf’s Ev. § 303, 304. 3 Phil. Ev. 1477. Bailey v. Johnson, 9 Cowen 115-118. In proof of such an arrangement, at that time, the admission of either of the plaintiffs was proper evidence to submit to the jury; as its competency is not affected by their dissolution, or their assignment, nor is it objectionable, as contradicting their written contract. The jury have found that such an agreement was made, and this will operate as payment or satisfaction of this account.

Charles L. Jackson was properly rejected as a witness; at least, when offered by the plaintiffs. He was one of the partners, and co-plaintiff on the record. He is directly interested to sustain the suit, as he is liable for costs, in case of their failure to recover. His release of all his interest in the debt, and the offer to deposit money with the clerk to cover the costs will have no effect to restore his competency. An interest of that character, cannot be removed by any act of his own, so as to render him a competent witness, against the consent of the defendant. 3 Phil. Ev. 1550.

The judgment of the County Court is affirmed.