Southwick v. Hopkins , 47 Me. 362 ( 1860 )

The opinion of the Court was drawn up by

Mat, J.

This action is brought in the name of four plaintiffs, the obligees of the bond declared on, a breach of which is admitted. Mary "W. Southwick, one of the plaintiffs, had no knowledge of its commencement, and, immediately after, under her hand and seal, forbid its further prosecution in her name. It is now contended that the paper which is pleaded by the defendants operates as a release of the action. The paper must receive a construction according to its manifest intent. It does not appear to have been made to the defendants, although it may be regarded as containing a notice to them that the action was brought without the authority or consent of this particular plaintiff. Its principal object seems to have been to direct the other plaintiffs to surcease the suit. It contains no words showing an intention to discharge the cause of action. In this respect, it is entirely unlike the writing relied upon in Lunt v. Stevens, 24 Maine, 534, cited in defence. In that case the paper, if it had been under seal, might have operated as a release of the action, because it purported on its face “ to be a discharge of the same.” It is true that a release need not contain any express or technical words to that effect. It will be sufficient if the instrument, being under seal, manifests a purpose or object which can be effectuated only by construing it as a release. The paper relied on in this case manifests no such purpose. It is not a release of either the bond or the suit.

On the contrary, when we consider the relation of these plaintiffs to each other, and that the protesting plaintiff had, in effect, transferred to the other plaintiffs her entire interest in the bond, by allowing them to pay all the money now sought to be recovered, we cannot doubt that the purpose of the paper' was to protect the party signing it against any liability for the costs which might arise in the suit. Such a construction is in harmony with the equitable rights of the parties. She only forbids the further prosecution of the suit “ in her name,” and this limitation may indicate an intention on her part not to interfere with the rights of the other plaintiffs to proceed in their names. The three plaintiffs who instituted the suit, having, in consequence of the existing arrangements between them and the other plaintiff, paid all the debts of the firm of Southwick & Hopkins, and the bond having been given to indemnify them against said debts, were alone interested in the fund to be recovered; and, for the purpose of recovering the same, may well be regarded as the assignees of the bond.

The law recognizes assignments of choses in action, and, for the protection of the equitable rights of the assignees, authorizes them to bring an action in the name of the assign- or ; and the assignor cannot lawfully interfere with the prosecution of the suit, if at all, certainly for no other purpose than to require indemnity against the costs; and the law protects these equitable rights so far that even payments to the assignor, after notice of the assignment, constitutes no defence to such a suit. Eastman & al. v. Wright & al., 6 Pick., 316.

We are, therefore, of opinion, in view of all the facts in the case, that this action can be maintained; and, according to the agreement of the parties, the defendants are to be defaulted, and heard in damages before the Judge at Nisi Prius.

Defendants defaulted, and heard in damages.

Tenney, C. J., and Bice, Cutting, Goodenow, and Davis, JJ., concurred.