Holbrook v. Lord ( 1858 )

The opinion of the Court was delivered by

Goodenow, J.

This action is founded on a promissory note dated August 1, 1845, made payable to William Hyde, or his order, for the sum of $2622,50, in three years from date, with interest, and signed by defendant. On the back of said note are several indorsements of sums of money received. It is also indorsed by “William Hyde, without recourse.”

The consideration for this note was the private debt due from the defendant to William Hyde.

On the 6th of August, 1845, the said Lord and Hyde, with one Duren, formed a co-partnership, under the firm name of Hyde, Lord & Duren. On the 27th of September, 1848, said Duren left said firm, and thenceforward the business was conducted by said Lord and Hyde, under the firm, name of Hyde & Lord. Said Hyde and Lord so continued partners, until the 26th of February, 1850, when becoming embarrassed in their business, and unable to pay all their creditors, they, in consequence thereof, made an assignment, under the statute.

John W. Munger, the assignee named in the instrument of assignment, duly accepted the trust.

On the 17th day of February, 1854, said assignee, among other things, sold at public auction the note set forth in the writ, the private property of said Hyde, and the plaintiff then and there purchased the same, he being the highest bidder therefor, for the sum of $485.

In looking at the instrument of assignment, we are not able to come to the conclusion that the said William Hyde executed it in any other capacity than as an assignor. We have no doubt he, as well as Lord, intended to assign not only all their partnership property, but all their private property, to which their creditors were justly entitled. They acted as parties of the first part, and not as creditors or parties of the third part, named in said instrument. The note in suit was not thereby discharged, but the property in it passed to the assignee, and, by the sale at public auction, from the assignee to the plaintiff.

Upon this view of the case, according to the terms of the agreement of the parties, a default must be entered, and judgment rendered for the plaintiff for the amount due on the note, and for his costs. Defendant defaulted.

Tenney, C. J., and Rice, Hathaway, and Davis, J. J., concurred.