Haney v. Sangston , 33 Ky. 246 ( 1835 )

Judge Ewiks

delivered the Opinion of the Court..

Moses Haney executed his note to John Young, for sixty dollars, on the 27th of July, 1832, payable five days after date, which was assigned, by Young, to Willis, and by Willis to Young, and by Young to J. L. Sangston, by the following assignment: “Pay the within to J., L.,Sangston “after the 1st day of October, 1834.. I will be respon- “ sible if the money cant be made of Haney, interest “ excepted until this day November 30th 1833.

“John Young”

Upon which note and assignment, J. L. Sangston sued out his summons upon petition, against Haney, on th.e. 7 th day of January, 1834..

To which petition,, said Haney, craving oyer of the. note, demurred. The Circuit Court overruled the demurrer, and gave judgment for the plaintiff. From which, judgment, Haney has brought the case to this Court by writ of error. •

The only question, is, whether said assignment vested the legal title to the note in Sangston, or authorized him. to maintain an action thereon, in his own name, before the 1st day of October, 1834.

We think it did not. The punctuation of the copy of the assignment exhibited to us, in the record, will not authorize us to come to any other conclusion, than that the payment was authorized, by the assignment, to be made by Haney to the assignee, after the first day of October, 1834, and 'not before. He, of course, had no right to demand it before, nor was there any compulsion upon Haney to pay it to him, before. He had no right, therefore, to complain that the payment was not made to him before that time, nor was Haney guilty of any default in failing to pay before.

The assignment seemed to have been intended to vest Sangston with the legal right to demand payment, by suit, after the time fixed in the assignment, and not before; and to secure the assignee against loss, for failing to prosecute the suit with due diligence, the assignor assumes on himself, by special stipulation, to be responsible if the money cannot be made out of Haney, with the exception of interest due on the note from the time it fell due, to the date of the assignment.

It is, therefore, considered by the Court, that the judgment of the Circuit Court be reversed, and the cause remanded, that judgment be rendered sustaining the demurrer of the defendant below.