27 N.H. 269 | Superior Court of New Hampshire | 1853
The principles that govern the assignment of cboses in action, and the rights that are acquired thereby, are believed to be generally well settled.
The assignee of a chose in action takes it subject to all •the legal defences that could, at the time of the assignment, be set up against it in the hands of the assignor. He acquires by the assignment the rights of the assignor, and nothing more. Of course, we speak not of negotiable paper, indorsed and transferred before due. Sanborn v. Little, 3 N. H. Rep. 539; Green v. Hatch, 12 Mass. Rep. 195.
The assignment of a chose in action may be by parol, and the delivery of a note or bill, upon a good consideration, is a sufficient assignment. Howell v. McIvers, 4 D. & E. 690; Heath v. Hall, 4 Taun. 326; Titcomb v. Thomas, 5 Greenl. 282; Clarke v. Rogers, 2 Greenl. 147; Jones v. Witter, 13 Mass. Rep. 304; 17 Johns. 284.
Upon an assignment being made, it becomes the duty of the assignee to notify the debtor of the fact of the assignment, and upon that being done, all defence to the payment, beyond what existed at the time of the assignment, must arise out of transactions which subsequently take place between the assignee and the debtor. The equitable interest of the assignee, where the assignment is bona fide and for a valuable consideration, will be protected against all persons having notice of the assignment. Jones v. Witter, 13 Mass. Rep. 304; Briggs v. Dorr, 19 Johns. 95; Master v. Miller, 4 D. & E. 340; Legh v. Legh, 1 Bos. & Pul. 447; Henry v. Milham, 1 Greenl. 266; Sanborn v. Little, 3 N. H. Rep. 539. See also Duncklee v. The Greenfield Steam Mill Co., 3 Foster’s Rep. 245, 250, and authorities cited.
If, however, the debtor makes a promise to the assignee to pay the debt to him, the assignee may maintain an action in his own name; for the equitable interest obtained by the assignment is a sufficient consideration to sustain an express promise. Currier v. Hodgdon, 3 N. H. Rep. 82; Edson v. Fuller, 3 Foster’s Rep. 191; Crocker v. Whitney & Wife, 10 Mass. Rep. 316; Doty v. Wilson, 14 Johns. 378; Fenner v. Meares, 2 W. Black. 1269; 4 Cowen 13; Wiggin v. Damrell, 4 N. H. Rep. 75.
And if such promise be made to the assignee to pay him, the debtor cannot avail himself, in set off, of claims he may have had, before and at the time of the assignment, against the assignor. Such promise amounts .to a waiver of any set off he might have. Wiggin v. Damrell, 4 N. H. Rep. 69; King v. Fowler, 16 Mass. Rep. 397.
In Wiggin v. Damrell it was held that where a note not payable to order has been assigned to a third person for a valuable consideration, and the maker has actually promised such third person to pay the contents, he is not to be permitted, in an action upon the note against him in the name of the payee, to avail himself of claims he may have against the payee as a set off.
The note upon which this suit was instituted was dated December 1st, 1848, and fell due January 1st, 1851, more than two years after it was given. Soon after it was made it was put into the hands of Simpson, as security for a debt due from Thompson, the payee, to Simpson. The defendants were duly notified of the assignment, and made no suggestion of any defence to the note, of of the existence of any set off to be brought against it; but, on the contrary,
The only excuse given for not paying the note appears to be, because it was not indorsed by Thompson. No suggestion of the existence of any set off was made, when the note was presented for payment, and none, upon the law as we have laid it down and upon the facts disclosed, could be allowed. '
The suggestion of counsel that the promise was not made to Simpson, the plaintiff in interest, is not well founded. It was made to him through the witness, Simpson’s agent. It was also the promise of the defendants to pay their own note, and not the debt of Thompson, and does not, therefore, come within the statute of frauds.
According to the provisions of the case there must be
Judgment on the verdict.
