Bulkley v. Landon

3 Conn. 76

Opinion

IIosmer, Ch. J.

Two objections have been made to the decision of the superior court. The first affirms, that the guaranty of Smith, Taylor <£' Co., ought to have been received in evidence. It is sufficient to say, that every material question on this point was fully considered and determined against the plaintiffs, when this case was before the Supreme Court, on a former occasion,

(a) The writing conduced to prove none of the facts for which it was offered. The position most insisted on, by the plaintiffs, is this; that if they proved the delivery of the guaranty, at the time when the notes were endorsed, it would be evidence of a request, made for that purpose, by Smith, Taylor $■ Co. Waiving the decisive objection, that the facts appearing on the motion do not present this question, it is a conclusive reply, that the guaranty has no tendency to support the proposition advanced. So far from evincing a request made to the plaintiffs to endorse the notes, it expressly purports to have been given in consideration of a precedent endorsement.

This action was brought by G. W. Someryndike and others. The defendant exhibited testimony of his admissions that the plaintiffs’demand had been paid. To destroy their effect, the plaintiffs offered evidence to prove, that, before they were made, Someryndike had become a bankrupt, and had assigned the above debt to his partner, John Bulkley, thereby divesting himself of all interest. The offered testimony was rejected f and the supposed error of this decision constitutes the second objection. This exception proceeds on the ground, that, after assignment, the assignor had no interest in the demand. Whether there was a warranty, expressed or implied, does not appear; one fact, however, is extremely apparent, that So-meryndike had an interest in speaking the truth. If, by false declarations made, he should frustrate the effect of the assignment, he would be hable to his assignee for the damage. This, however, is not the foundation of my opinion. G. W. Someryndike is a party, invested with the legal interest of the demand in suit. As plaintiff, the action and demand are under his control; the former he may withdraw; the latter he may release. The assignee has an equitable interest in the debt; and after notice of the assignment, he may bring his suit at law against his assignor, or against the debtor, if he is defeated by the act of either, in the collection of the original demand. Coleman v. Wolcott, 4 Day 6. Wolcott v. Coleman, in error, 2 Conn. Rep. 324. But so long as it remains unex-tinguished, he must sue in the name of the person with whom the contract was originally made. The principle that a chose in action cannot be assigned, so far, at least, as respects the remedy, holds good in every case, unless in respect of negotiable notes, or bills of exchange. Whether there is use or convenience in preserving the shadow, when the substance is gone, (Masters & al. v. Miller, 4 Term Rep. 341.) does not remain a question, on which we are at liberty to decide. By a current of uniform decisions, it has {in this state) been firmly established, in reference to notes not negotiable, that suits upon ¡them, even after assignment, must be brought in the names of the promisees; and that, so far as relates to the control of them, they are 4he party plaintiffs. To contravene a principle so well settled would be in direct hostility with the salutary maxim of Stare decisis, and, if pursued, would leave no other law than the discretion of the judge.

By the law of Westminster-Hall, youmay, for some purposes, look from the record, and see who is' beneficially interested ; (Winch. v. Keeley, 1 Term Rep. 619.) but never to determine, that the person in whose name the suit is pursued, is not a party. Bauerman & al. v. Radenius, 7 Term Rep. 663. In the -case last cited, the admissions of the plaintiff on record were received in evidence to defeat the action, although he was merely a trustee for a third person. “ I take it to be an incontrovertible rule, said Lord Kenyon, that the admission made by a plaintiff on the record, is admissible evidence.” And by Grose, J., “Aslong as Bauerman Co. are plaintiffs on the record, they must be taken to be so in all their consequences.” To the objection that the interest was not in the plaintiffs, Lawrence, J. remarked, “It must be considered that they have an interest in order to support the action; and if they have, an admission made by them, that they have no cause of action, is admissible evidence.” Vide The King v. Hardwick, 11 East, 583. Phill. Evidence, 72. To the same effect is the case of Craib & wife v. D'Aeth, 7 Term Rep. 670., in which the defendant, at the trial, gave in evidence an affidavit of W. Craib, the plaintiff on record, sworn to by him after he had assigned the bond in suit, in which were stated the facts relied on by the defendant. On arguing an objection to the admissibility of this evidence, the court said, “ It was too clear to be argued ; and that there would be no question but that any thing said or sworn by the plaintiffs on the record, must be evidence for the defendant.”

I shall not attempt to reconcile the principle of those determinations with the one adopted by the court of Common Pleas, in the case of Legh v. Legh, 1 Bos. & Pul. 447. This was an action on an assigned bond, brought in the name of the obli-gees. The defendant pleaded a release from the plaintiff on the record, given after the assignment; and the court would not allow him to avail himself of his plea. I am not disposed to say, that a court of chancery would not afford precisely the relief given in this case. It is sufficient for me to observe, that the authority exercised is unknown to our practice, and in opposition to principles well established.

In the state of New-York, a release from the obligee, after the assignment of abend with notice, is considered a nullity, even where the action is brought in the name of the releasor. Andrews v. Beecker, 1 Johns. Cas. 411. Wardell v. Eden, 1 Johns. Rep. 531. n. (a.) Littlefield v. Storey, 3 Johns. Rep. 421. This-is not the law of Connecticut; and it will merit great consideration, before such a principle, even by a court unshackled by precedent, shall be recognised. The rights of the assignee of a chose in action ought to be protected; but this should be done in conformity with other well established principles. Whether it has been done in the decisions alluded to, would be an interesting enquiry, if it could have any p rac-tical bearing on the case before us.

The testimony offered has not been pressed to the extent, to which, if well founded, it ought to be carried. If Someryndike, although a party, has no interest, and the reception of his declarations depends on that principle, he should have been ruled out as inadmissible. The fallacy of the objection consists in this; that in a court of law, so far as relates to the prosecution of the suit, the party must be considered as having an interest For, if he has no interest, why should he have an action 1

The other Judges were of the same opinion.

New trial not to be granted.*-

2 Conn. Rep. 404.