62 Iowa 87 | Iowa | 1883
Lead Opinion
The evidence shows that on the ninth of June, 1879, the plaintiff took a written assignment of the account from Farnsworth. On the next day he mailed a written notice of the assignment to the defendant, in which he stated to the defendant that no payment should be made to any one without plaintiff’s order. Defendant, by reply which was received by plaintiff on June 17, acknowledged receipt of the notice, and stated that he was ready to settle with plaintiff. Afterwards, about June 20, the plaintiff received a letter from the defendant, stating that there was a balance of $25 due on the account. The defendant pleaded settlement and payment in full of the account, and introduced a receipt for $15, signed by Farnsworth, dated June 24, 1879, which acknowledged payment in full of all demands.
Section 2087 provides that an assignee of an open account has a right of action in his own name, “hut subject to the same defenses and counter-claims as the instruments mentioned in the preceding sections.”
We think the payment to Farnsworth before the suit was brought was a good defense, and that the court should have so found. To hold otherwise would require us to ignore the plain provisions of these sections of the statute. It is not a question of notice to the debtor that the account had been assigned to the plaintiff. The question is, did the debtor have any defense to the account, against the assignor, when the suit was brought? He most assuredly had a defense at that time, unless we hold that payment is not a defense, and this no one will claim. But for the statute, an open account is not assignable, and it is wholly immaterial whether a debtor has a defense against the assignor when he receives notice of the assignment, or whether such defense arises afterwards, for the simple reason that the statute creates no right by reason of notice. The point of time fixed by the statute is the commencement of the suit. If at that time he has a defense against the assignor, he may interpose it against the assignee.
This question has already been twice determined by this court. Zugg v. Turner, 8 Iowa, 223; Reynolds v. Martin, 51 Id., 324.
Reversed.
Rehearing
ON REHEARING.
Counsel for the appellee insist that the account sued on is not an “open account,” and, therefore, not
The abstracts shows that Farnsworth assigned all his “right and title to my account for grubbing” to the plaintiff. In the notice to the defendant, plaintiff said: “ Farnsworth has sold and assigned to me his account for grubbing.” Afterward the plaintiff wrote to defendant to ascertain the amount due.
If such amount had been admitted and had become an account stated, this inquiry would have been unnecessary. We think the account, when assigned, was an open account, and, therefore, governed by Code, § § 2086 and 2087. The notice of the assignment had no effect on the rights of the parties. The former opinion is adhered to.
