12 Ind. 390 | Ind. | 1859
George Freeman sued William II. Over-street, on an account assigned to said George by John G. Freemcm, thus:
“ William H. Overstreet to John G. Freeman, Dr: To 81,438 staves, at 5 dollars, 50 cents, per 1,000, $447.85. [Indorsed.] For value received, I, J. G. Freemcm, assign all my interest in the above account to George Freemcm, without recourse on me, this 6th day of January, 1857.
John G. Freeman.”
John C. Freeman, the assignor, was not made a party;
In a complaint upon such account and assignment, the interest of the plaintiff must be averred, as well as the indebtedness of the defendant; and while the written account itself cannot be regarded as the foundation of the action,- like other written instruments, it would seem that the written assignment of it might be set out and filed with the complaint, as other written instruments, so that, not being denied on oath, it would be admitted. The account itself, however, would have to be proved. The assignment, being a formal written instrument, signed by the party, would seem properly to stand on the footing of other written instruments.
Answer, in denial of the account, with special paragraphs of payment, set-off, &c. Trial by the Court, and judgment for the plaintiff.
On the trial, John C. Freeman was admitted as a witness without objection, so far as appears by the record.
No question of law has been properly raised except as to the right of an assignee of an open account to sue on it in his own name. Of this we have no doubt. Strong v. Clem, at this term
On the weight of evidence, we cannot reverse the judgment.
The judgment is affirmed with 5 per cent, damages and costs.
Ante, si.