Langdon v. Langdon , 70 Mass. 186 ( 1855 )

Shaw, C. J.

The only question in this case is, whether Shoreham Goodenow, who commenced this action in the name of the nominal plaintiff, without his consent, established by proof the assignment of the note, as a valid assignment of a chose in action, so as to vest in himself the equitable title to the described note, as holder. If he had such an assignment, as it appears that the defendants had notice that the note was placed in the hands of Goodenow, they could not, by payment to the original payee, defeat the equitable right of Goodenow as assignee. But if he had no assignment, but only held it as attorney to the payee, then payment to the payee, before an action brought, or at any time before trial, was a good discharge.

The terms on which Goodenow received the note, not a nego tiable one, from the nominal plaintiff, are expressed in the paper dated June 19th 1851. This paper, though called a receipt, and beginning with the word “ received,” is not a receipt for money, within the rule allowing a receipt to be controlled or explained by paroi evidence. It was a written instrument stating the terms on which the possession of the note was intrusted to Goodenow. We think therefore that the judge was right in excluding paroi evidence to show that the note was held on other and different terms. It follows that whether Goodenow had the possession of this note, as under an assignment of a chose in action vesting an equitable title in himself, or under a power to collect the note for the payee, and as his attorney, must depend upon the legal effect and meaning of the paper writing given back by him on receiving the note.

It is to be considered that, where a party sues as assignee in the name of another, without his consent, and especially where the debtor has paid the debt to the nominal creditor, the burden of proof is strictly on the assignee to prove his equitable title. In the case before us, the court are of opinion that Goodenow, who claims to sue in the name of Ira S. Langdon, but without and against his consent, agreed, by the acknowledgment and promise made in his receipt, to take, hold and collect this note for the payee, as an attorney, and took a power only; but did not receive the same to collect for his own use and benefit, as an assignee of a chose in action. The receipt expresses no consideration paid for the note, which was not negotiable; it contains no word of assignment or transfer of the note, or of any interest therein; on the contrary, he stipulates to account for the proceeds of the note, when collected, deducting a small sum for services or charges, or return the. note back to said Langdon ; and there is no stipulation that, if so returned, the assignor will repay or reimburse the assignee. It discloses the capacity and obligations of an agent who is to execute a power for his principal, and not that of an assignee for value, taking an equitable title in the thing to his own use.

The word “ assign ” need not be used, or any express words of conveyance ; if it appear from the whole instrument that it is intended to give a power coupled with an interest, it will operate as an assignment. But it must be an interest, legal or equitable, in the subject matter on which the power is to operate, and not merely in the fees and commissions of the agency, or in the thing to be acquired by the execution of the power. Hunt v. Rousmaniere, 8 Wheat. 174.

Here the power was to collect the note. If he had no interest in the note, and took none by the instrument itself, it was a naked power, and might be revoked by the author of it. Here there is no evidence of any previous interest in the note, and none is expressed in the receipt. It was therefore revocable, and was revoked by receipt of payment, by the original payee.

One point taken in the argument is, that the promisor, William B. Langdon, paid a less sum than the actual amount due on the note ; and that, although the creditor gave a receipt in full satisfaction, yet, by a rule of law, a mere money debt cannot be discharged by payment of a sum less than the actual debt. There is such a rule of law; but being somewhat harsh, contrary to the apparent intentions of parties, in making a compromise settlement, and not in harmony with the dictates of natural justice, it is to be construed strictly. But this rule can have no application to this case ; for, as Goodenow had no assignment, he cannot recover the difference for his own use, and the nominal plaintiff does not seek to recover it, but expressly disclaims the maintenance of the action in his name for any purpose.

Exceptions overruled.