134 Mass. 31 | Mass. | 1883
The order was addressed to the Union Stone Company, and was accepted by “ Jnq. F. Wood, Treas.,” who was the treasurer of the company. In form this is an acceptance by the company, and the circumstances under which it was given show that it was intended to be the acceptance of the company. Carpenter v. Farnsworth, 106 Mass. 561. Whitney v. Stow, 111 Mass. 368.
The order was accepted in pursuance of an agreement between the Wood and Light Machine Company, Buchanan, Ware and Company, and the defendant, that the defendant should accept the order and deliver it to the Wood and Light Machine Company, and it was so delivered. This constituted a promise by the defendant directly to the Wood and Light Machine Company. The Wood and Light Machine Company parted with the possession of the lathe, for which Buchanan, Ware and Company had agreed to pay cash, and delivered it to the defendant “ on account of Buchanan, Ware and Company,” “ on the faith and credit of the money payment and the notes secured by the order.” This was a good consideration for the acceptance and delivery of the order, moving directly from the Wood and Light Machine Company, at the request of the defendant. These facts bring the case within the law as laid down in Walker v. Sherman, 11 Met. 170, and distinguish it from the case at bar as reported in 130 Mass. 584.
The order was delivered as collateral security for the payment of the notes of Buchanan, Ware and Company. At the time the Wood and Light Machine Company filed its petition in bankruptcy, that company held the order and three of the five notes given by Buchanan, Ware and Company. The remaining two
The assignees before the commencement of this action sold and assigned all their interest in the notes, and in the assets of the bankrupt estate, to Pratt and others, and the order has been held by Howland, the agent of Pratt and others, as collateral security for the payment of the notes transferred by the company before bankruptcy, as well as of the notes sold to Pratt and others by the assignees. The purchaser of a chose in action from an assignee in bankruptcy cannot bring suit in his own name, but may in the name of the assignee. Leach v. Greene, 116 Mass. 534.
By none of the transfers of the notes of Buchanan, Ware and Company has the defendant been discharged from its liability on the order, and the assignees are the proper party to bring an action at law upon it for the benefit of the persons who are equitably interested in the damages to be recovered.
As the order was delivered to the Wood and Light Machine Company directly by the defendant, upon a good consideration between these parties, the defendant was entitled to have the order delivered back to it, if the notes, the payment of which the order was given to secure, were all paid. One of the notes has been paid, but the order stands as security for the four notes remaining unpaid, and can be enforced against the defendant to the amount of those notes. The report finds that “ a demand was made upon the defendant corporation, without any condition, to fill the order according to the defendant’s own construction of it and in its own way, and it refused, assigning no reason except that it was not legal.” This demand was made after the maturity of all the notes. After such a demand
The rulings of the court were correct. Judgment affirmed.