| Ala. | Jun 15, 1852
— -The following are the facts of the case, as they are shown by the record : William Armour and Henry Lake were a mercantile firm, under the name of Armour & Lake. The same persons, with James Murdock,
The plaintiff in error urges against the right to maintain the action, that the instrument sued upon, being a-promissory note, was not assignable at the common law; that it was made assignable only by the statute of this State, (Clay’s Digest, 381 § 6, 383 § 12;) and that this statute, while it confers upon the assignee the right to sue in his own name, confines the exercise of this right to those cases only in which the payees might have maintained an action; and that, as in the present case no action at law could have been maintained by Armour & Lake, so the defendant in error, who claims as their assignee, and derives his only right to sue under the statutes referred to, cannot sustain his action. .
"Waiving the discussion of the question as to the assigna-bility of promissory notes at the common law, and conceding for the present that the terms of the statute are such as require us to recognize the construction contended for; still, we do not think it necessarily follows that the law upon the-facts as presented is with the plaintiff in error. Unquestionably, under that construction, if it is admitted that the instrument sued on was a promissory note before its endorsement by Armour & Lake, the consequences insisted on by the counsel for the plaintiff in error must ensue. Armour & Lake would then be the payees; and as they could not maintain an action upon it, their assignees could not. But was this instrument, legally speaking, a promissory note, before its endorsement by the parties to whom it was payable ? A promise in writing made by A, to pay a specified-sum of money to his own order, is not a note, until endorsed by him; for the reason, that, until then, no legal obligation is created. So also, in relation to a note payable in bank, drawn by a firm payable to one of its members, and by him assigned, it
Tbis being tbe principle applicable to mercantile paper, the reason of the rule must equally apply to all promissory notes. The case of Lacy v. LeBruce, 6 Ala. 904" court="Ala." date_filed="1844-06-15" href="https://app.midpage.ai/document/lacy-v-le-bruce-6502347?utm_source=webapp" opinion_id="6502347">6 Ala. 904, is directly in point, upon tbe principle involved. That was a note not mercantile in its character, made by one firm payable to another, each firm containing a common partner. Tbis partner died; tbe surviving payees brought their action; and it was beld, that they could recover. Tbe decision was based upon tbe ground, that the death of tbe common partner operated as an assignment to tbe surviving payees; thus recognizing the principle, that, if tbe payees had assigned the note, the as-signee could have maintained the action. The authorities referred to, and the reason on which they are based, lead us to tbe conclusion, that tbe writing sued on, until assigned by Armour & Lake, bad no validity as a note, and that after the assignment the assignee, as between himself and tbe maker, must be regarded as tbe real payee, and sustaining in the present case tbis relation, be is not affected by tbe statute.
These views are entertained by the other members of the court, and in relation to tlieir correctness I express no opinion, preferring myself to rest tbe decision upon the construction of the acts of 1812 and 1828, (Clay’s Digest, 381 § 6, 383 § 12,) authorizing the assignment of promissory notes; in which we all concur. The first of these acts declared promissory notes, &c., assignable; and the act of 1828, after providing that bills of exchange and notes payable in bank should be governed by the law merchant, &c., proceeds thus: “All other contracts for the payment of money,” &c., “shall be
In regard to the difficulty suggested by the counsel for the plaintiff in error, upon this construction of the statute, in relation to sets-off existing between the maker and payee, we do not well understand bow any question of that kind can arise, upon assignments like the one under consideration. Its validity is not denied; that can only be done by a sworn plea, (Clay’s Digest, 341, § 158;) and in all cases in which the transfer was made by payees who were also members of the firm that made the note, we think the assignment being-made by one partner would not operate as a waiver of any set-off on the part of the firm to which he belonged. But even if this is not the law, the right of set-off by the makers would not be affected, although they might be required to assert it before another tribunal. The statute could not have contemplated equitable sets-off; and as between two firms having common partners there could be no other. We may add, the same difficulty in relation to sets-off is presented in the case of Lacy v. LeBruce, supra, and is necessarily covered by that decision.
The judgment is affirmed.