13 Barb. 230 | N.Y. Sup. Ct. | 1852
The first question proper to be considered in this case is, whether, assuming that the payee of the note, made by Baker, at the time of the sale thereof to the plaintiff, had a valid claim against both the defendants for the balance due upon the loan to them, that claim, as to both, passed to the plaintiff by the sale. The note given by Baker a few days after the loan, was given for the debt created by the loan; and the note which was sold to the plaintiff was given for the balance due of that debt, after a partial payment upon the first note, and as a substitute for the first note in respect to that' balance. There were not two distinct debts; one created by the loan, and the other by the first note; but that note represented and was the evidence, as against Baker, of the original debt; and the note sold represents and is the evidence, as against the same defendant, of the amount of that debt remaining unpaid.
The purchase of a debt entitles the purchaser to all the additional securities for it, though they be not expressly named in the assignment of it. (Farmers and Drovers’ Bank v. Fordyce, 1 Pennsyl. Rep. 454.) The books are full of cases to that
But if the conclusion to which I have arrived upon the point considered is wrong, another question in the case is, whether the written assignment by the payee of the note, of the claim against the defendants for the money loaned, was not valid and effectual to pass the claim to the plaintiff. So far as the objection that no new consideration was received, is concerned, the obvious answer is, that the consideration paid for the note supports the assignment, and that no new consideration was necessary; and as to the objection that the instrument was not delivered to the plaintiff or any person authorized by him to receive it; a delivery to' a third person for him was sufficient. (Verplank v. Sterry, 12 Johns. 535. Church v. Gilman, 15 Wend. 656. The Lady Superior v. McNamara, 3 Barb. Ch. Rep. 375. Rathbun v. Rathbun, 6 Barb. 98.) If the assignment was for the plaintiff’s benefit his assent to accept must be presumed. (2 Kent’s Com. 454, 4th ed. Cowen & Hill’s Notes, 303, 1283.) I should not, therefore, have any difficulty in holding the assignment valid and effectual.
Prior to the code, the remedy of the plaintiff upon the original consideration of the note, would have been in the name of the payee; but the code allows him to enforce the claim in his own name. (§§ 111, 112.)
It is insisted by the defendants’ counsel that the nonsuit was proper, notwithstanding it may not be -sustained on the ground upon which it was ordered, for the reasons that it is not proved that the loan was to the defendants, and that if it was, the note of Baker, under the- circumstances, was a payment of the balance due. I think, however, the bill of exceptions discloses at least sufficient evidence to require the submission to the jury of the question whether the loan was not to the firm. (Jaques v. Marquand, 6 Cowen, 497. Reynolds v. Cleveland, 4 Id. 282.
Selden, Johnson and T. R. Strong, Justices.]
The nonsuit must be set aside, and a new trial granted; costs to abide the event.