Hardy v. Colby , 42 Me. 381 ( 1856 )

Hathaway, J.

The defendant Colby, and Hiram Covell, owed Frances E. Stevens a joint and several note for four hundred dollars, which was paid and taken up by Colby. Hiram Covell died intestate, and Sarah Covell was appointed administratrix of his estate; and, as such, was summoned as trustee in this suit, and disclosed. Colby, having paid the whole of the note for which he and Covell were jointly liable, had a just claim against Covell’s estate for contribution.

The administratrix, in her disclosure, stated that she was notified by Harris C. Barnes, before the service of the trustee process on her, that Colby had assigned said note to him.

Barnes, to maintain his claim as assignee, in pursuance of the provisions of the statute, became a party to the suit.

The question submitted to the jury, by the pleadings, was, whether or no.t, “prior to the service of the plaintiffs’ writ in this case, the said fund had been, for a valuable consideration, assigned to the said Barnes ?”

Colby, who was a competent witness, (R. S., c. 119, § 39,) testified, substantially, that he owed Barries a note for five hundred and nineteen dollars and sixty-eight cents; that it was understood and talked over between them; that the Covell note was evidence of the indebtedness of Covoll’s estate to him; that he assigned his claim upon the estate to Barnes; and the note, as the evidence of it, in part satisfaction of his indebtedness to Barnes, who gave him for the same the written instrument of January 20, 1855, by which he acknowledged the receipt of the note, and promised to return it, or account for it, when called for; and that there was no other writing passed between them.

It is obvious, from the whole testimony of the witness, and from the manner in which the business was done, that both he and Barnes meant and understood the same thing, by the assignment of the note, (which had been paid by Colby,) and the assignment of Colby’s claim, against Covell’s estate.

The note having been paid by Colby, and being in his possession, was evidence of his claim.

The delivery to Barnes, of the evidence of the debt, for a valuable consideration, was sufficient to render the assignment valid between the parties to it; and if valid between them, and bona fule, it cannot be defeated by the process of foreign attachment. Littlefield v. Smith, 11 Maine, 327; Porter v. Bullard, 26 Maine, 448.

The delivery of the note to Barnes, and his receipt for it, coupled with his promise to return it, or account for it when called for, was a sale to Barnes of the evidence of the debt, and of the debt also, which, thereby became his property; and as perfectly so, as if the claim had been a note, not negotiable, against Covell, and payable to Colby. Holbrook v. Armstrong, 1 Fairf. 31; Dearborn v. Turner, 16 Maine, 17; Buswell v. Bicknell, 17 Maine, 344; Perkins v. Douglass, 20 Maine, 317.

The instrument which the witness called the receipt, furnished a valuable consideration, and therefore constituted an essential element of the assignment. Hence, the instruction of the Judge that the receipt constituted no part of the assignment, was erroneous; but it was immaterial, the plaintiffs were not injured by it, nor is any error perceived in the rulings or instructions of the Judge by which the plaintiffs could have been aggrieved.

The verdict of the jury sustained the assignment; and if they believed the evidence, there appears no reason why they should have come to a different conclusion.

Exceptions and motion overruled.

Tenney, C. J., and Rice, Cutting and Goodenow, J. J., concurred.