Stiles v. Farrar

18 Vt. 444 | Vt. | 1846

The opinion of the court was delivered by

Kellogg, J.

The county court having adjudged the defendant’s rejoinder insufficient and rendered judgment for the plaintiff, the case is brought to this court for revision; and the question raised by the bill of exceptions is, whether the rejoinder is sufficient. The note declared upon is not negotiable, yet the payee’s interest in it might well be assigned, and, upon notice of the assignment to the maker, the equitable interest of the assignee would be protected at law. This principle is too well settled to admit of controversy. It is no longer an open question. Newell v. Adams, 1 D. Ch. 346. Strong v. Strong, 2 Aik. 373. 12 Johns. 344. 15 Johns. 406. 16 Johns. 51.

But it is contended, that, inasmuch as the defendant’s account, which is the foundation of his offset, existed anterior to and at the time of the assignment and transfer of the note to Haskins, his right of offset still exists. The correctness of this proposition must be admitted, provided nothing has occurred since the assignment of the note to Haskins, to defeat the right. But the plaintiff in his replication alleges, and the same is admitted by the rejoinder, that the note was assigned.to Haskins for a valuable consideration, that the defendant was duly notified thereof, and that thereupon the defendant promised to pay the note to Haskins. This promise, if binding upon the defendant, does, in the judgment of the court, amount to an acquiescence in the assignment, and a waiver of all right, or claim, in the defendant to interpose an offset to the note. King v. Fowler, 16 Mass. 398.

But it is objected, that there was no consideration for the promise, that it was a mere nudum pactum, and therefore not obligatory upon the defendant. This objection is not well founded. It is settled by numerous adjudged cases, that the assignment of a debt for a valuable consideration, with notice to the debtor, is a sufficient consideration to sustain an express promise to pay the debt. It was so held in Crocker v. Whitney, 10 Mass. 316, and the same principle is fully recognised by this court, in Moar v. Wright, 1 Vt. 57, and in Bucklin v. Ward, 7 Vt. 195. To the same point is Currier v. Hodgdon, 3 N. H. 82.

The note not being negotiable, the suit might well be brought in the name of Stiles, the payee, for the benefit of Haskins, the assignee. Moar v. Wright, 1 Vt. 57.

It is farther objected, that it does not appear, that the suit is brought and prosecuted for the benefit of Haskins. This objection, we think, cannot be sustained. It is true, it is not alleged in express terms, that the suit is prosecuted for the benefit of the assignee; but it is very apparent, from the pleadings in the case, that such is the fact. The rejoinder admits the sale and transfer of the note by Stiles to Haskins, notice of the assignment to the defendant and his promise to pay the note to Haskins. The defendant thereby recognised and assented to the assignment. The conclusion is irresistible, that the suit is prosecuted for the benefit of Haskins.

The result is, that we do not discover any error in the judgment of the county court, and the same is therefore affirmed.