Connor v. Parker , 114 Mass. 331 ( 1874 )

Devens, J.

Even if the authority from Parker to keep the attached property, which was directed to “ Wm. H. Savage cr bearer,” gave to Savage the right to transfer it so as to constitute the person to whom it might be thus transferred the lawful custodian, and enable him to maintain an action for services rendered as such, yet it would not authorize such person to again transfer it, invest the person thus substituted with a power of substitution, and continue this power indefinitely to whoever might find himself lawfully in possession of it. Such a document has not the qualities and characteristics of negotiable paper, nor can it be considered as available in the hands of any one who may hold it in a regular course of delivery no matter how far he may be removed from the party to whom it was originally com mitted.

It is ordinarily of no consequence to whom one pays a sum of money which is due, provided he thereby acquits his debt; but it was of much importance to the defendant, responsible as he was for this property, who should be the custodian of it; and it is not to be presumed, without words more explicit than these, that he intended to become indefinitely responsible.

Again, if Bartlett had this authority, the evidence of the terms of the contract, in regard to compensation, under which Bartlett held the property should have been admitted. Bartlett could do no more than transfer to the plaintiff the benefit of his contract with the defendant; he was not made an agent of the defendant to contract with the plaintiff that he should have a reasonable sum for his services, any more than any other sum which might be fixed between them, and the plaintiff must be bound by the agreement made by Bartlett for compensation. The paper from which the right to the custody is claimed was entirely silent on this subject; but when one becomes the assignee of a contract, he must take it as it has been made by the assignor.

Exceptions sustained.