Cole v. Bodfish , 17 Me. 310 ( 1840 )

The opinion of the Court was drawn up by

Weston C. J.

The defendant executed a bond to Jabez Sawyer, upon certain conditions set forth therein. It was an instrument not negotiable in its character, so as to enable an assignee to bring an action in his own name. It had a penalty, and was subject to- chancery. Assuming that the obligor did, subsequent to the date of. the bond, and after'the beneficial interest had been assigned to the plaintiff, by.an indorsement th'ereon, under his hand and seal, obligate himself to the plaintiff by name, to’ extend the time limited in the condition of the bond, a question arises, whether it would authorize the plaintiff to bring an action- thereon in his own name.- ' ■

Where a chose in action is; assigned, such assignment may constitute a sufficient consideration, to sustain an express promise, on the part of the debtor, to the' assignee, so as to enable "the latter to maintain assumpsit in his own name. , But this is based upon the' new promise. If the obligor should, by ..express contract under his'Seal,' undertake to oblige himself to fulfil the bond to the assignee, such undertaking would be sufficient to sustain an action of covenant broken, if-the obligor failed to perform. But in, this case',' by the indorsement, the defendant only extends, for the benefit of the plaintiff, the time limited in the bond. And it may be doubt-' ful, whether any other inference can be drawn from it. It would seem, that in all other respects the instrument remains unchanged. It may have the effect to recognize the assignment to the plaintiff, so as, tq protect his equitable interest from arty interference by the original obligee.’ But an action must be brought in his name, if its becomes necessary to enforce the rights'of the assignee.

According to our practice, a nonsuit may be ordered by the” Court, if 'upon the plaintiff’s own showing his action is not sustain-" ed, subject however to his right to except to the opinion of the" Judge. Sanford v. Emery, 2 Greenl. 5; Perley v. Little, 3 Greenl. 97. Regarding every thing' as proved, upon 'which the plaintiff relied, in our judgment he cannot by law support the action in his own name; so that the nonsuit must be confirmed. It becomes unnecessary therefore to determine the competency of a; part of his testimony, or the ruling of the Judge upon that point.

Exceptions overruled.