Mills v. Fox , 4 E.D. Smith 220 ( 1855 )

By the Court.

Ingraham, First J.

The assignment of the claim by Lincoln to the plaintiff was sufficient. There appears to have been a sufficient consideration for it in the agreement to return two notes. No consideration, however, is necessary to the validity of such an assignment. A man may sell a claim for one dollar, or one thousand dollars, or he may give it away. The debtor cannot object to the assignment that his creditor has disposed of a claim he held against him for less than its value. It is his duty to pay the debt— not refuse payment because his creditor has sold it at a cheap rate or given it away.

There was evidence enough to warrant the recovery of 10 per cent, on the small sums prosecuted but not collected, and ' of 25 per cent, on the amount collected.

As to the allowance of the claim against Donohue, however, I think the court erred. If the notes taken for this claim were taken on the suggestion of Lincoln, as is sworn to by Fox, because the debt could not be proved by other testimony, then the time has not arrived to decide whether the plaintiff would be entitled to have 25 per cent, or not. It would still be in a process of collection, and until it is ascertained that the money can be collected on the notes, Lincoln or his assignee would not be entitled to any per centage.

If Fox had not placed the claim in the hands of Lincoln for collection, he would be liable to damages—not the sum of $100, as stated in the agreement, for that is only the penalty, and is not liquidated damages. He would only be entitled to damages which he could prove, not exceeding the $100; or, perhaps, under the wording of this contract, the plaintiff might consider the debt of Donohue as not collectable, and be entitled to receive 2?¿- per cent, on the amount.

But I see nothing to warrant the allowance of 25 per cent, on that claim. Fox received the notes of Donohue for the claim in a less amount than the claim itself—because, as he says, enforcing the claim would avail nothing—and within the eight months, during which the claim was not to be sued, two of the notes had become due, and Fox had sent one of them to Lincoln to collect. In August, 1854, Lincoln says he then told Carvalho, the clerk of Fox, that he could do nothing with the notes. The account against Donohue was not to be prosecuted within eight months, and if within that time Lincoln admitted he could do nothing with a note of $175, it is very fair to presume that he could not collect a claim for $1,087 79.

Lincoln denies the alleged conversation, as stated by Fox. Although it is not very material to the disposition of this case, still it shows the danger of permitting parties interested in claims to be witnesses in their own behalf. One of the other of these parties has sworn to what is untrue, and such, in many cases, is the result of this new provision of the law, which is intended to promote the elucidation of the truth. Without resting the decision of the case at all upon this part of it, in which there is such a contradiction, under no circumstances could there be allowed to the plaintiff on this claim more than 2-J per cent, under the contract.

The claim has not been settled, compromised or received by Fox, nor has he disposed of it. He has changed its form from a book debt to notes; whether he reduced the amount or not, would be immaterial, because the contract provides that the 2£ per cent, shall be upon the amount of the whole claim. The inability to collect $175, part of the claim, within the eight months, shows that it was not of any value, and leaves the plaintiff entitled to nothing more than the 2-| per cent, agreed upon in the contract.

If the plaintiff consents within ten days to reduce the judgment to $50 75, the judgment is affirmed for that amount, and costs of the court below, without costs of appeal. If not, the judgment is reversed, with costs.

Adjudged accordingly.