Papineau v. Naumkeag Steam Cotton Co.

126 Mass. 372 | Mass. | 1879

Soule, J.

The order of Couillard on the defendant, in favor of the plaintiff, was not an order for payment of all that should be due the drawer as wages at the several times when the instalments were to be paid. It was not, therefore, an assignment of wages to the plaintiff, unless the defendant saw fit to assent to it as such, but a mere order for money. Gibson v. Cooke, 20 Pick. 15. Dana v. Third National Bank, 13 Allen, 445. If it were an assignment, it would not enable the plaintiff to maintain an action in his own name, except on proof of a promise by the defendant to the plaintiff to pay him. Riley v. Taber, 9 Gray, 372. Foss v. Lowell Five Cents Savings Bank, 111 Mass. 285. Such acceptance or promise is not shown. The statement of the clerk of the defendant, that he would pay the order if there was no trouble about it, was not a promise, but rather a refusal to assume responsibility, leaving the question of payment to be determined by his employers at some future time. The separation and retention by the clerk of the amount of the successive instalments, and placing them in an envelope marked with the plaintiff’s name, did not change the legal relations of the parties, nor the ownership of the money so separated and retained. It was accompanied by refusal to pay it to the plaintiff, which precludes the inference of any promise to him; and the money remained in the control of the defendant to use as it saw fit to use it. The wages of Couillard remained unpaid to the amount thus retained by the defendant, and a suit in his name could have been maintained to recover the balance due.

Exceptions overruled.