Swett v. Green , 4 Me. 384 ( 1826 )

Mellen C. J.

This case comes before us on exceptions alleged to the opinion and instructions of the court of Common Pleas. The question presented for our consideration is whether the facts stated in the deposition of Samuel Rice, shew a legal assignment of the order declared on to Richard M. Bartlett, for whose benefit the action is brought, and such notice of (he same to Green the defendant, prior to the date of the discharge, or re eeipt, which he received from Swett, the nominal plaintiff, as te entitle it to protection in this court.

ft seems that the order was drawn on Green, in favor of Swett, the secretary of the mechanic association, to raise money to pay a note, on which Bartlett stood liable to the association as an in dorser. The order, though accepted by Green, was not paid, and Bartlett paid the note on which he stood liable as before mentioned; and thereupon Rice the treasurer of the association, delivered this order, so accepted, to Bartlett; and evidently for the purpose of indemnifying him on account of his suretiship for Kelly & Coates. This delivery, under these circumstances, and for such purpose, according to the decision of this court in Vose v. Handy 2 Greenl. 322, and Robbins v. Bacon 3 Greenl. 346, and the cases there cited, amounted to an effectual assignment of the order ; con* veying to Bartlett an equitable interest therein, entitled to legal ‘protection ; provided Green had notice of it, prior to the giving of said receipt or discharge. As to the point of notice, we must look to the facts. The case finds, as before stated, that the order was drawn on Green in June 1822, for the express purpose of relieving Bartlett from his responsibility, as indorser of the abovementioned note. When the order was presented for pay* ment, it was not paid, though it was shewn to Green, and pay» ment was requested. It appears also by the exceptions, that Green was “ told the circumstances of the order being drawn”— as it is expressed ; that is, he was told the occasion on which, and the purpose for which the arrangement was made, in due season. This shews that he must have been aware that Swett had no controling power over the order, nor any legal interest in it ; nor did he pretend to have any when he delivered it over to the treasurer of the association. Besides, the receipt itself, dated and given almost two years afterwards, carries on the face of it no small proof of the same fact ; for the consideration or sum specified therein is only one dollar ; whereas the sum named in the order, is sixty dollars. Hence it seems to be clear that either the receipt was never intended to affect or apply to the order ; or else that it was given for a very improper purpose j that is, to impair or destroy the rights of Bartlett, the owner of the equitable interest therein ; which by law he had no right to do. On either supposition it must be unavailing to the defendant, We have no hesitation in overruling the exceptions, and affirming the judgment of the court of Common Pleas.

Judgment affirmed.