Rollison v. Hope

| Tex. | Jul 1, 1857

Wheeler, J.

The Court did not err in overruling the motion to dismiss the petition.

That the affidavit may be made before the Clerk of the Court in which the suit is instituted, has been heretofore decided.

The affidavit is not in the most approved form. But a substantial compliance with the law is all that is required; and the law does not prescribe the terms of the affidavit; but only that the party applying shall make affidavit in writing, setting forth sufficient cause to entitle him to the writ. (Hart. Dig., Art. 1753.) The practice has been to construe these proceedings liberally ; and not to require the same strictness which is required in the proceedings in ordinary suits in the District Court. We think the affidavit ought to be deemed sufficient in substance, especially as the motion did not point out specifically the objection now urged.

The petition was also sufficient. It does not expressly negative that there may have been other evidence before the Justice than that which it recites. But it states that there was no proof to sustain the account sued on ; and that, taken with the other averments, was suffi cient to entitle the petitioner to the writ.

The material question is, whether there was evidence of an assignment of the debt to the plaintiff,' of a character to enable him to maintain the action ; and whether there was error in the charge, and ruling of the Court upon that question.

In the late valuable Treatise of Mr. Robinson on Practice, (Vol. 2, p. 254 to 259,) the law upon this subject is very clearly laid down, with a reference to the cases. There are cases, (he says in which, by agreement, though it be by parol, one person may be substituted for another, as it regards the obligation of the latter. “ Where it is admitted that a defined and ascertained sum is due from A to B, and that a larger sum '' is due from C to A, and the three agree that C shall be B’s “ debtor instead of A, and C promises to pay B the amount owing “ to him by A, an action will lie by B against C. Wilson, &c. v. Copeland, &c., 5 Barn. & Ald. 225; 7 Eng. Com. Law Rep. “ 77.” “ It is a general rule as to such cases, that it lies upon “ the plaintiff to show that at the time when the defendants are “ supposed to have promised to pay him the debt owing to him “ by the third party, there was a debt ascertained to be due to “ that party from the defendants. Fairlie v. Denton, &c., 3 “ Barn. & Cress. 395: 15 Eng. Com. Law Rep. 246. And it “ must appear that the plaintiff agreed to look to the defend- “ ant instead of his original debtor ; that the debt from such “ debtor was extinguished. Caxon, &c. v. Chadly, 3 Barn. & “ Cress. 591; 10 Eng. Com. Law Rep. 191. Wharton v. Walker, “ 4 Barn. & Cress. 163; 10 Eng. Com. Law Rep. 302. These cases in effect hold, that even at Common Law, a chose in action “ is assignable with the assent of the three parties concerned.” (Id. 255.) “ In Massachusetts and Maryland, an assignment “ by a party, of his money in another’s hands, with notice to “ that other, imposes on him an equitable and moral obliga* “ tion to pay the money to the assignee ; and though this obli- “ gation is not sufficient at Common Law to enable the as- “ signee to maintain an action thereon in his own name, it is “ yet a good consideration for an express promise to that “ effect. It is no objection to such an assignment, that it is of “ a debt due on open account, or even of an unliquidated bal- “ anee of account. If the defendant, having notice of the as- ‘‘ signment, promises to pay what shall appear to be due from “him, he is liable for what shall so appear. Nor does it make “ any difference, if instead of a debt now due, the assignment “ is of money which is expected to become due at a future day, “ to the assignee. When the contingency happens and the “ money is due, the debtor is liable for the amount, on his pro- “ mise to the assignee. Jackson, J., in Croker and wife v. “ Whitney, 10 Mass. 326; Kingly &c. v. New England Mut. “ F. I. Co. 8 Cush. 400; Onion v. Paul, 1 Har. & J. 114; “ Allston’s Adm’r. v. Contee’s Ex’or, 4 Id. 351. There are “ other cases deciding that a promise in writing, delivered “ over by the payee to another, for an adequate consideration, “ the promiser having notice and promising to pay the as- “ signee, will justify an action by the assignee upon his own “ name. Lamar v. Monro. 10 Gill & J. 50; Gordon v. Downey, 1 Gill. 51. Such action has been maintained, although “ the name of the assignee has not been signed upon any part “ of the note. Mowry v. Todd, 12 Mass. 281" court="Mass." date_filed="1815-05-15" href="https://app.midpage.ai/document/mowry-v-todd-6404325?utm_source=webapp" opinion_id="6404325">12 Mass. 281; Jones v. Witter, 13 Id. 307. It has been maintained without producing “an assignment in writing. S. C. 1 Har. & J. 114-15.” (Id. 255-6; and see Clinton v. Chambliss, 6 Rand. 86" court="Va." date_filed="1827-11-27" href="https://app.midpage.ai/document/cleaton-v-chambliss-6805880?utm_source=webapp" opinion_id="6805880">6 Rand. 86.) If two men agree for the sale of a debt, and one of them gives the other credit in his books for the price, that may be a good assignment in equity, though there was no promise made by the debtor to pay the purchaser. (2 Rob. Prac. 256-7; 4 Taunt. 327; 10 Wend. 680; 1 Wheat. 233" court="SCOTUS" date_filed="1816-03-11" href="https://app.midpage.ai/document/welch-v-mandeville-85153?utm_source=webapp" opinion_id="85153">1 Wheat. 233.) “ By the sale and delivery of a bond or note, though without indorsement or “ written assignment, the purchaser becomes the beneficial “owner.” (2 Rob. Prac. 257.) And repeated decisions of this Court have settled, that such beneficial owner may maintain an action thereon in his own name. The equitable interest in a chose in action may be assigned for a valuable consideration, by mere delivery of the evidence of the contract; it is not necessary that the assignment should be in writing. (1 Parsons on Con. 197; 15 Mass. 481" court="Mass." date_filed="1819-05-15" href="https://app.midpage.ai/document/dunn-v-snell-6404806?utm_source=webapp" opinion_id="6404806">15 Mass. 481.)

The above references show that a chose in action, not evidenced by writing, or an open account, may be assigned without writing ; and that the assignment will pass the equitable title to the assignee ; if the debtor have notice of the assignment, and promise to pay the assignee, the latter may sue therefor in his own name in a Court of Law : if there is not any express promise to pay, equity will protect the interest of the assignee, and in our Courts he may maintain the action in his own name. To apply these principles to the case before us : Shannon was indebted to the plaintiff, and the defendant was indebted to Shannon. He (Shannon) told the plaintiff to look to the defendant for the debt; which the plaintiff agreed to do ; the defendant had notice of the agreement, and proposed to the plaintiff to pay him in property, and in a note. Here, then, there was a parol assignment of the debt from Shannon to the plaintiff, with the knowledge and assent of the defendant; the latter was thereby released from his liability7- to Shannon, and became liable to pay the debt to the plaintiff. The latter being the beneficiary, and equitable assignee and owner of the claim, might well maintain the action in his own name. It is not a case within the operation of the Statute of Frauds. The action was not brought upon the promise of the defendant to pay the debt of Shannon, but upon the assignment by Shannon of his claim upon the defendant. The defendant was sued for his own debt, not that of Shannon. The charge of the Court, therefore, upon that subject, was inapplicable ; and there was error in refusing the instructions asked by the defendant. We have seen that the assignment was valid. And it is clear that the defendant could not defeat the plaintiff's right by making payment to Shannon or buying up claims against him, after he had notice of the assignment, The judgment is reversed and the cause remanded.

Reversed and remanded.