Overstreet v. Freeman

12 Ind. 390 | Ind. | 1859

Perkins, J.

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; nor was any objection taken to the complaint on account of the omission. But the assignment was in writing, not by delivery. This, however, cannot change the rule as to parties, because an account is not made assignable by statute, by indorsement, so as to vest the legal title. The assignment in writing, therefore, is but an equitable assignment.

S. P. Oyler and F. M. Finch, for the appellant. G. M. Overstreet and A. B. Hunter, for the appellee.

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 ⁽¹⁾.

On the weight of evidence, we cannot reverse the judgment.

Per Curiam.

The judgment is affirmed with 5 per cent, damages and costs.

(1) Ante, si.