Weinwick v. Bender

33 Mo. 80

• Court: Supreme Court of Missouri
• Decided: October 15, 1862
• Status: Published

Opinion

Dryden, Judge,

delivered the opinion of the court.

The written assignment was not a sufficient title to enable the plaintiff to maihtain his action, not because of a lack of authority to write the assignment over the name of Shafer, the assignor, but because the name was endorsed after the institution of the suit. A plaintiff can only recover on such right as he had when suit was brought. But the objection is of no practical importance in the case, since, the evidence showed the plaintiff the equitable owner by means of a verbal sale and delivery of the note before suit brought, which is a sufficient title on which to recover under the law now in force. (R. C. 1855, p. 1217, § 1.)

The note sued on was non-negotiable, and if, as is assumed by the instruction refused by the court, Bender was summoned as the garnishee of Shafer, the payee, and before he had received any notice of the transfer to the plaintiff, he was condemned by the judgment of the justice to pay the debt, evidenced by the note to the attaching creditor of Shafer, and that he had accordingly paid it before the institution of this suit, the same was and is a bar to this action. In the case of the St. Louis Perpetual Insurance Company v. Cohen, 9 Mo. 438; this court held that, “ as to dioses in action, or paper not negotiable, the assignee takes it subject to all the defences the maker may have against it before notice of the assignment. To the assignee of a chose in action, the rule caveat emptor applies. With regard to these debts, the doctrine asserted by Justice Story, in his Conflict of Laws, sec. 396, is replete with justice, and secures in a plain way the, rights of an assignee against an attaching creditor, and amply protects the garnishee. That doctrine is this:

“ That an assignment operates per se as an equitable transfer of the debt. Notice is indispensable to charge the debtor with the duty of payment to the assignee; so that, if without notice he pay the debt to the assignor, or it is recovered by process against him, he will be discharged from the debt. But an arrest or attachment of the debt in his hands by any creditor of the assignor, will not entitle such creditor to a priority of right, if the debtor receives notice of the assignment pendente lite, and in time to avail himself of it in discharge of the suit against him. The foregoing is the doctrine of the common law, uninfluenced by statutory regulations.”

The court then proceeded to decide that our statute relative to the assignment of bonds and notes had changed the common law, as just laid down, and made it necessary, before an attaching creditor could recover against the obligor or maker of a non-negotiable bond or note, to show that at the time of the garnishment the instrument was in the hands of the attachment defendant, in like manner as in cases of negotiable securities.

The statute on which the decision was based has since been revised and amended, and a provision adopted by which the principles of the common law applicable to the question under consideration have been restored. The provision referred to is as follows :

R. C. 1855, p. 822, sec. 3. “The obligor or maker shall be allowed every just set-off or other defence against the assignee, or the assignor, existing at the time of or before notice of the assignment, unless it shall be expressed in the bond or note that the same is for value received, negotiable and payable without defalcation.”

The judgment is reversed and a new trial awarded.

The other judges concur.