De Forest v. Frary

6 Cow. 151

• Court: New York Supreme Court
• Decided: August 15, 1826
• Status: Published

Opinion

Curia,per

Sutherland, J.

It is a fatal objection to both counts, that they aver the assignment of the order, which is the foundation of the plaintiffs’ action, to have been made by Kellogg alone, for himself and Meller, without averring that they were partners, or shewing, in any other way, the authority of Kellogg for that purpose. This draft was payable to the order of Kellogg or Meller, in the disjunctive, as stated in the first count; out of the proceeds of certain carriages, whenever they should be sold. It was, therefore, not negotiable ; and its legal effect is the same as though the word order had been omitted. Both counts aver that the consideration of the order, was a debt due from Woodworth to Kellogg and Meller. They were tenants in common, therefore ; and neither had a right to assign, without the express authority of the other. The second count avers that the draft was payable to the order of both. We cannot presume a partnership. It should be averred ; so that the defend&nt may have an opportunity of contesting it.

The plaintiffs having failed to shew a legal title to the order, the consideration for the defendant’s promise fails ; and the plaintiffs cannot recover.

The special causes of demurrer are not well taken. It was necessary for the plaintiffs to show the original consideration of the order and acceptance ; and the matters objected to, all go to form that consideration. (Lawes' Pl. in assumpsit, 31, 49. 1 Chit. Pl. 295, 6.)

I am inclined to think the general averment, that the assignment was for a valuable consideration, is not sufficient. The consideration should have been stated at large. (1 Mass. Rep. 117. 17 John. 292.) On this latter point, however, it is not necessary to express a definitive opinion.

The defendant must have judgment, with leave to the plaintiffs to amend on the usual terms.

Rule accordingly.