Platt v. Hedge & Co. ( 1859 )

"Woodward, J".

The bill of exceptions states that the plaintiff" offered as a witness, Janies Platt, by whom lie professed to prove that he was the assignor of the claim sued on, the assignment of the same, and that he had divested himself of all interest in it, so far as such assignment would do it, and to prove tlie items of the account. The defendants objected, upon the ground that the. subject matter of the suit was not such as to vest such an interest, by assignment, in the assignee, as that he could sue in liis own name, and use the assignor as a witness. The statute (Code, section 952), says, an open account of sums of money due on contract, may be assigned, and the assignee will have the right of action in his own name, but subject to the same defenses and set-offs as the instruments mentioned in the preceding section— that is, any defenses and set-offs, legal or equitable, against the assignee, which he may have against any assignor thereof before suit is commenced therein. By this section, an open account of sums of money, due for anything apparently ex contractu, and not ex delicto, may be assigned. The assignment transfers the entire property. The assignee may sue in his own name. Taking a simple case, unembarrassed by circumstances, what forbids the assignor being a witness ? He is a competent one. It is only a question of interest; whether he has bona fide, absolutely, sold the demand. But if this is not so; or if he lias sold the claim for a certain amount, and is bound to make that amount good ; or if there are set-offs; or if there are other relations arising, and collateral circumstances affecting the question, we will not undertake to determine, by anticipation, the cases which may arise. In the case at bar, none of these circumstances appear, and none of these questions arise. The defendants plead a denial and payment, and on these the assignor is a competent witness.

According to our present views, and as the case presents the witness, he was competent to testify; and, therefore, the judgment is reversed, and the cause remanded.