151 Mass. 338 | Mass. | 1890
The defendant Griffiths named in tbe writ was not served with process, and tbe action was prosecuted against the defendant Brown alone, under the Pub. Sts. c. 164, § 14. Smith, tbe nominal plaintiff, had declared upon a judgment recovered by him in New York against Brown and Griffiths, on January 31,
The defendant excepted to the admission of the press copy produced by Shafer, upon the ground that it was not competent evidence to prove the assignment of the plaintiff’s judgment. He contends that a more satisfactory kind of secondary evidence existed, known.to the plaintiff before the trial, and that no evidence was given that a search had been made for the assignment alleged to have been lost, and therefore that the evidence was inadmissible. We understand that the first of these objections refers to the formal assignment filed in the court; but the testimony of Shafer, who is a lawyer, afforded evidence that might well satisfy the judge that this could not be taken from the files of the court, and it was also but a second assignment, which would have been inoperative had the first been really made, althought it might have furnished evidence for the files of the court of the transfer. If there are several sources of information of the same fact, it is not ordinarily necessary to show that all have been exhausted before secondary evidence can be re
The Pub.. Sts. c. 163, § 10, provide that, if the demand on which the action was brought “ has been assigned, and the defendant had notice of the assignment, he shall not set off a demand that he acquires against the original creditor after such notice.” The defendant Brown further contends, that the court erroneously ruled that there was sufficient evidence to warrant the jury in finding that the defendant Brown had notice of the assignment to Shafer and Gottgetren of the judgment recovered by Smith before the recovering of the judgment by Brown and Griffiths against Smith, declared on in the declaration in set-off.
There was evidence that one Sperry had been the attorney of Brown and Griffiths in the suit brought against them by Smith, and that soon after judgment had been recovered and execution had issued thereon, while negotiations were pending in regard to the officer’s fees and the sum which should be paid in satisfaction of the judgment between Sperry and Shafer, the latter gave Sperry notice of the assignment of the judgment; and that, some three or four weeks after, Shafer met Griffiths in Sperry’s office,
While the statute above cited does not in terms provide for notice to an agent or attorney, there is no reason why the general principle which affects a principal by notice to his agent or attorney should not apply.
Upon another ground, also, we are of opinion that the jury were warranted in finding notice to Brown of the assignment; and that is through the notice to his co-defendant Griffiths in the first action, who was his co-plaintiff in the second action, of which there was distinct testimony. It is a general rule, that where two or more persons are subject to a joint duty or obligation, and when special notice to each is not made necessary by statute or contract, a notice to one on behalf of all is notice to all. Morse v. Aldrich, 1 Met. 544. Knight v. Fifield, 7 Cush. 263. Applying the same principle, even if the defendants are not shown to have been partners, they were joint contractors, liable for the debt originally due to Smith, and a notice to one of them that the judgment on this debt had been assigned would be a notice sufficient to prevent them from thereafter recovering as joint plaintiffs a judgment upon another claim which would be operative as a set-off to the judgment which had been thus assigned.
The view we have taken of the above questions renders it unnecessary to discuss other questions presented by the bill of exceptions.
Exceptions overruled. ■