Page v. Danforth ( 1865 )

Appleton, C. J.

The demand in suit was a chose in action due from the plaintiff in error to Rufus K. Page. The writ alleged an assignment to the defendants of the claim sued for in the original action and a promise to the assignor, but it does not contain any promise to pay the assignees after the assignment, and it is sought to reverse the judgment for that cause.

The assignee of a chose in action may maintain a suit in his own name, upon the promise of the debtor to pay the same to him. Lang v. Fiske, 11 Maine, 385.

The Court will not reverse a judgment for any want of form, which might have been amended. Lord v. Pierce, 33 Maine, 350. This is specially prohibited by R. S., 1857, c. 82, § 1.

The declaration, though defective in not avering a promise to the original plaintiffs, might have been amended. Pullen v. Hutchinson, 25 Maine, 249; Stephenson v. Mudgett, 10 N. H., 338. In a suit against administrators, in which there was no averment of a promise by them, the plaintiff was allowed to amend by inserting the necessary averment. Proctor v. Andrew, 1 Sand., (Sup. Court,) 70; Smith v. Proctor, 1 Sand., (Sup. Court,) 72; Flowers, Ex’r, v. Garr, 20 Wend., 668. Judgment affirmed.

Kent, Walton, Dickerson and Barrows, JJ., concurred.

Cutting, J.

At common law, choses in action, originally, were not negotiable, so as to authorize the assignee to commence an action in his own name. But that rule has, subsequently, been modified so as to embrace all such as are payable to order or bearer. The demand in the original suit was not of that character. It was " for money laid out, expended, and paid by Rufus K. Page (the assignor) to and for the use of said defendant (this plaintiff in error) for the use of the said Page, before he assigned his property as aforesaid, in consideration thereof, the defendant then and there promised the said Page, before he assigned his property as aforesaid, to pay him the same sum on demand.” There was no allegation, that, after the assignment, the defendant promised the assignees to pay them. Had it been so, the judgment rendered on the default would have been unexceptionable. As it is, the declaration shows no privity between the parties of record.