McLanahan v. Ellery

16 F. Cas. 232, 3 Mason C.C. 269

• Court: U.S. Circuit Court for the District of Massachusetts
• Decided: October 15, 1823
• Status: Published

Opinion

STORY, Circuit Justice.

There is no controversy as to the facts in this case; the principal question is, whether the bill of exchange and assignment to the plaintiff, stated in the bill and answers, were sufficient to pass a title to the property, to the plaintiff. The substance of the case is this; the defendant owed a debt to the firm of Montgomery, Fitch & Co. of Marseilles. On the dissolution of their partnership they apprized the defendant that they had put that debt “at the disposal” of one of the partners, F. Montgomery, and requested him to pay it accordingly. The defendant assented to it, provided the debt was not paid by an agent of his, then expected to go with his ship to Marseilles. The debt was not paid by the agent. In the meantime, F. Montgomery, being indebted to the plaintiff (as surviving partner of a firm at New Orleans,) as security for :hat debt drew a bill of exchange for the supposed balance in the hands of the defendant, and two days afterwards executed an assignment of the same balance to the plaintiff. The bill was refused acceptance by the defendant, and the assignment was duly notified to him. Upon these transactions, there can be no doubt that in equity the debt passed by the assignment to the plaintiff, unless the partner was incompetent to assign it for his own private debt. Assuming that, as partner, he was so incompetent, yet it is very clear, that the partners, by putting it at his disposal, and requesting the payment to be macfe to him, gave him an absolute right to receive it, or dispose of it, in any manner he might choose. In short, as to any third person, he became the complete proprietor. If any doubt could’remain on this point, it is completely extinguished by the subsequent ratification of the other partners, as to this very assignment, contained in the letter of Fitch addressed to Messrs. William & J. Brown, in June, 1819. The assignment then was originally good and valid, and the defendant has shown nothing to prevent its full operation. The subsequent attempt of F. Montgomery to defeat this assignment, by a revocation, is entirely void. He can no more take away this, than any other security bona fide given to his creditor. The negotiation in Marseilles by Mr. Clapier, as agent of the plaintiff, absolved the firm of Montgomery, Fitch & Co. only, from liability to the plaintiff; but left his rights as a creditor in full force against F. Montgomery. The debt therefore, for which the assignment was given as security, remaining unpaid, the plaintiff is entitled to a decree for the amount of the balance in the hands of the defendant; and I shall accordingly so declare. Decree accordingly.