Thayer v. Havener , 6 Me. 212 ( 1829 )

Pakius J.

The note in question was, by the terms of it, made payable March 22, 1826, but it was not indorsed to the plaintiff until May 1826, and of course is liable, in this action, to the same equities and the same defence as though Cochran himself was the plaintiff, unless the alleged assignment of the note to the plaintiff in November 1825 has changed the principle. If it has not changed it, the nonsuit must be confirmed, because it appears that ten days after the alleged assignment, the bargain, out of which the note originated, had been mutually rescinded by Cochran and Havener, and the consideration abandoned. As to the assignment, the facts are few and simple. They only shew that a short time before the contract was annulled, the note, with others, had been lodged by Cochran with Messrs. Wilson & Stevens for collection ; — and that Cochran on the 15th of November drew an order on them for the amount of monies they might collect on those demands. They accepted tiie order conditionally — that is, to pay such sums as they might receive, alter getting their due, to the person presenting the order, it does not appear that they ever received any thing on the notes; — - it does not appear that Thayer was a creditor of Cochran, or that the note, if assigned, was assigned to the plaintiff upon a valuable consideration ; — and if there had been such an assignment and such a consideration, it does not appear that the plaintiff gave the defendant any notice of it prior to the rescinding of the contract. Nothing can be plainer than that a payment of a debt to the assignor, after the assignment but before notice of it given to the debtor, is a good payment and discharges him. The defence, in this case, is as effectual as payment. There is no possible ground on which this action can be maintained. Nonsuit confirmed.