Rockwood v. Brown

67 Mass. 261

• Court: Massachusetts Supreme Judicial Court
• Decided: March 15, 1854
• Status: Published

Opinion

Merrick, J.

The sale and delivery, without indorsement, of the note declared on, was a legal assignment thereof to the purchaser. The assent of the assignor to the prosecution of the present suit might, if it were at all necessary to the maintenance of the action, be inferred from his demand and reception of a bond of indemnity from the assignee against the costs, charges and liabilities created by it. But it is not necessary. The assignment itself, being made upon a sale and purchase, terms importing a sufficient consideration therefor, conferred upon the assignee a right to sue in the name of the assignor, which can neither be controlled by him, nor objected to by the maker of the note. Jones v. Witter, 13 Mass. 304. Grover v. Grover, 24 Pick. 261. Stone v. Hubbard, 7 Cush. 595.

The execution of the note being admitted in unqualified terms by the defendant, and no intimation being made, in the agreed statement of facts, of its subsequent alteration, it must be taken to have been executed exactly as it appears upon its face, and treated accordingly. And having been signed by the maker in the presence of an attesting witness, this action, being brought in the name of the original payee, though for the benefit of another party who has become its owner, is not barred by the limitation prescribed in the Rev. Sts. c. 120, § 1. Hodges v. Holland, 19 Pick. 43. Sigourney v. Severy, 4 Cush. 176. Drury v. Vannevar, 5 Cush. 442. There is a slight difference of phraseology in the provisions of § 5 of St. 1786, c. 52, and of § 4 of Rev. Sts. c. 120. The alteration was reported by the commissioners appointed to revise the statutes of the Commonwealth, but without any intention to change the law, as it before existed. See their report, c. 120, note. In Sigourney v. Severy, above cited, the turn statutes are said to be alike.

Judgment for the plaintiff.