Underwood v. Morgan

11 Johns. 425

• Court: New York Supreme Court
• Decided: October 15, 1814
• Status: Published

Opinion

Thompson, Ch. J.

delivered the opinion of the court. The motion to set aside the nonsuit in this case must be denied. There has been no violation of the special agreement upon which the action is brought, when construed according to its true import, and its legal effect and operation. It was proved by the plaintiff, that the judgments assigned by the defendant to him, xvere obtained in the state of Vermont. Although the judgments were void in this state, so that no action could be maintained upon them here, that was no breach of the stipulation in the assignment. Nothing appears showing that the judgments were not good in the state of Vermont, or that the plaintiff could not maintain an action upon them there; and no part of the assignment will warrant the conclusion, that the defendant stipulated that an action could be sustained upon the judgments in this state.

There is certainly no express warranty of these judgments, and any implied warranty is rebutted by the very terms of the assignment; for the plaintiff took them at his own risk. This was obviously the intention of the parties, as appears both by the terms of the assignment, and the consideration paid, which was much less than the face of the judgment. If the defendant, by the assignment, had stipulated that the plaintiff should be enabled to obtain judgment in this state upon the Vermont judgments, there would then have been weight in the argument of the plaintiff’s counsel. But this stipulation is not to be found in the assignment, nor does the case furnish any facts warranting the conclusion that such was the intention of the parties, ad,» mitting it would have been competent evidence.

Motion denied.