Billings v. Atchison

15 Mo. 68

• Court: Supreme Court of Missouri
• Decided: October 15, 1851
• Status: Published

Opinion

Scott, J.,

delivered the opinion of the court.

The evidence in the cause disproved the plaintiff’s petition. It showed that the note was not assigned to McNair, but to the Knox Insurance Company. If the cancellation of the assignment, in full, to the Knox Insurance Company was made under circumstances which would not destroy its right of action, the suit might have been brought in its name, as the trustee of an express trust. See Duty’s adm’r. vs. Dutcher, decided at this term. If the holders of the note found it necessary to bring suit in their own name, all the circumstances should have been stated, as in a bill in equity, showing their right, and that there was no malajides in their conduct in obtaining the note. For the reasons given in the case of Davis vs. Christy, 8 Mo. Rep. 571, an assignment in full, oí a note not negotiable, cannot be cancelled, as may be done with negotiable paper. The parties to such an instrument cannot defeat or throw obstacles in the way of set offs which the maker may have against any assignee, as would be done if assignments in full were permitted to be cancelled. The other judges concurring, the judgment is affirmed.