Lovely v. Caldwell

4 Ala. 684 | Ala. | 1843

ORMOND, ,1.

The jury having passed on the bona Jides of the transaction and found that there was a sufficient conskL eration to support the transfer of the debt due from Glover by James H. to Samuel W. Caldwell, the only question which remains is, whether the debt was in fact transferred by what took place between the parties ? The facts were, that after the sale of the partnership interest by James H. Caldwell to Glover, the former requested the latter to pay the money to his brother ;Sanrael W. Caldwell, who was then present, to which Glover replied that it was immaterial to him to whom he paid the mo* «ley-

It is perfectly clear that this was a sufficient authority to Glover to pay the money to Samuel Caldwell; but did he acquire such an interest in the debt, that Glover could not after-wards have paid it to James Caldwell without his consent ? It .appears to us that he did. It does not appear that there was .any written evidence held by James H. on Glover, for the debt in question; it was a mere verbal agreement to pay a sum of money which could not be transferred so as to confer the legal title. The question here is not whether this direction to Glover, to pay the money to Samuel Caldwell, and assented to by Glover, vested the legal title in Samuel Caldwell so as to enable him to maintain an action in his own name; but it is whether he acquired the right to the money, although to recover it he may have been compelled to use the name of James Caldwell. It is laid down in the books, that where a promise is made by one for the benefit of a third person, he may maintain «an action upon it. [1 Bos. & Pul. 101, and note b.] But in .the view we take of this case, it is not necessary that Samuel Caldwell should have had the legal title so as to maintain an action against Glover in his own name. It is sufficient that the interest of James Caldwell in the debt had passed from him, and vested in the defendant Samuel Caldwell,before any right accrued to the plaintiff, by the levy of his attachment. This was the fact as appears from the evidence of Glover, and we are therefore of the opinion that the Court did not err, either in the charge given or in that refused.

It may be proper to add that it appears that the debt due from Glover was by an instrument in writing, transferred by James to Samuel Caldwell previous to the garnishment. This was sufficient to invest him with the equitable interest, and without any assent on the part of Glover to pay him, would have protected him against the garnishment, on notice of that fact to Glover. In every aspect in which we can consider the case, there is no error in the judgment of the Court, and it must be affirmed.