Sleeper v. Gagne , 99 Me. 306 ( 1904 )

Strout, J.

Action upon an account annexed, by assignee of Julius Kessler & Co., the original creditors. The account annexed was not specific, and for that cause a demurrer to the declaration filed at the return term was sustained. Thereupon plaintiff amended, by filing a specific bill of items. To the amended declaration a special demurrer was filed, assigning the causes as

“ 1st. The amended declaration does not show or pretend to show that the defendant in this action was ever indebted to Julius Kessler & Co, in any amount whatever.

2nd. That said amended declaration contains an assignment written therein as a part of said declaration, the following; — “New York, Nov. 24, 1903. For value received we hereby assign and transfer all our right, title and interest in the above to Harrison G. Sleeper. Signed, Julius Kessler & Co., inc., Per H. P. Wilbur, Assistant Treasurer.

3rd. Because said declaration contains statements as to several distilleries in different parts of the United States which is in no part a portion of this declaration.”

That demurrer was overruled, and exception taken.

As to the first cause, the bill of items is, “Nelson Gagne, Dr.”,— but does not state the name of the creditor. But the declaration alleges a debt due from the defendant to Kessler & Co., according to the account annexed. The bill of items annexed has the same effect as if copied in the body of the declaration. It is equivalent to an allegation that defendant was indebted to Kessler & Co. for the items enumerated in the declaration itself, without an account annexed, and is sufficient.

The second ground is without merit: To entitle an assignee to sue in his own name, he must file with his writ the assignment or a copy thereof. R. S., 1903, c. 84, § 146. It is quite as well to have that assignment in the account as on a separate paper.

The third ground is baseless. The bill of items has printed on one corner the business card of Kessler & Co., and the names of several distilleries. The items were evidently written on the bill head of Julius Kessler & Co. This is harmless.

Exceptions overruled.