| Vt. | Aug 15, 1851
The opinion of the court was delivered by
The contract between the plaintiff and Crosby, being before the note fell due, amounted to a virtual payment of $50,00 of the note in advance of its maturity, and would be a sufficient consideration for any promise on the part of the plaintiff to extend the time of payment, and, being made without the knowledge of the defendant, who was a surety merely, would operate to release him.
The only question in the case, then, is, whether what had taken place between Crosby and Hastings operated as an assignment of the same sum to Hastings, so that Crosy had no control over it. It appears to us, that such was not the effect.
The claim, which Crosby had upon the plaintiff, was not in the nature of a debt. It was more in the nature of an unliquidated claim for damages, either in tort, or contract, and, as such, is not subject to assignment. A sale of claims of that character would amount to a virtual sale of suits, and so be, in effect, majntenance. The assignment of a chose in action presupposes, that the debt is known and recognized by both parties, and is therefore settled and definite, and that nothing more remains to be done between the parties, to perfect the assignment. If that be not so, the contract of assignment is merely executory, and nothing will vest in the assignee, until the debt is liquidated and the assignment perfected.
It is evident, such was the intention of the parties in the present case, and that they could have only regarded their former contract as executory, as they did in fact execute a written assignment in the summer of 1847, after the debt was settled. We think, therefore, that, until the settlement of the partnership between the plaintiff and Crosby, there was no debt, which could be assigned in prcesenti, so as to vest any valid interest in the assignee, which would put the matter beyond the control of the parties to the original dealing. It must of course have been in the contemplation of the parties, that the -plaintiff and Crosby would have to settle this dealing, and that
As a general rule, too, an assignment of a thing, by way of pledge, is wholly inoperative without delivery; and we do not see, why this will not apply to dioses in action, as well as to things in possession. We know of no case, where a mere agreement to assign a chose in action, without even a symbolical delivery, has been held valid, between the parties even. In the case of a note, or bond, the delivery of the contract is sufficient. So, too, when the assignment of an account is made, it has been held sufficient to deliver the bill. And when the assignment is in writing, the delivery of the writing would very likely be sufficient. But we recollect no. case, where the mere agreement to assign has been held an assignment, in the present tense. It is evident, from what subsequently passed between the parties, that they regarded the first agreement to assign as merely inchoate, and not as vesting any present interest in the unliquidated balance of the partnership dealings.
Upon both these grounds, then, we think this opposed no obstacle to the contract between the plaintiff and Crosby.
And if it had been merely doubtful, as to the validity of Hastings’ claim, and the plaintiff were inclined to run the risk of it, the agreement by Crosby, that he might apply the balance of the partnership upon this note, could hardly be said to be a contract without consideration. It would possess both requisites of a valid consideration. It would, or might be, a benefit to the promissor and an injury to the promissee. The plaintiff, the promissor, would get $50,00 paid on his note without the risk of ultimately losing it, or having to go into chancery to compel the set off; and would also get the pay in advance of the maturing of the note: and the promissee, Crosby, would be the loser in both these particulars; and the fact, that the plaintiff must also run the risk of being compelled to pay the same amount to Hastings, will make no difference, unless it is certain he will have to pay him, which can never be the case, as his claim is, at the most, merely collateral, and Crosby may pay him otherwise, as he is bound to do.
So that it seems to us, that, upon either of these grounds, it must
It should be borne in mind, too, that the amount of the consideration for a promise is of no importance. A pepper corn is ample consideration for a promise to any extent. So'long, then, as any interest whatever in this balance remained in Crosby, his promise to have it apply upon the note must be of some value. The chance of ultimately obtaining it would be thereby increased. And as an assignment to secure a debt would of necessity leave some residuum in him, it would afford sufficient consideration for a promise to wait, on the part of the plaintiff, he knowing all the facts and not being in any sense misled. So that, upon either of the grounds named, it would seem, the promise was upon valid consideration.
Judgment reversed and case remanded.