Patrick v. McWilliams

By the Court. —

Benning, J.

delivering the opinion.

The admissions of the obligee in a bond, whether containing words of negotiability or not, if made after he has assigned the bond, and after notice of the assignment has reached the obligor, are not admissible in evidence for the obligor, against the assignee.

This is a proposition that was not disputed by Mr. Calhoun, the counsel for the defendant in error, and we think that he ivas right in not disputing it.

It is one, however, that was denied by the Court below. That Court held, that, “in an action brought upon a bond containing no negotiable words, in the name of the obligee, for the use of the assignee to whom the bond had been transferred by written assignment, the admissions or sayings of the obligee, could be given in evidence, to prove payment or a settlement with him after action brought, to defeat the right of the assignee or party in interest, to recover in said action/'

But what was insisted upon by Mr. Calhoun, was, that there was not any evidence to show, that the sayings of this obligee, Patrick, were uttered after the obligor, McWilliams, had notice of the assignment; and, therefore, that the charge, if wrong, in respect to the point of the effect of notice, could have done no harm.

But we think, that in this, he was wrong.

The sayings of Patrick were uttered at some time which was after a settlement had been made by him and McWilliams.

There was a plea by McWilliams, to the effect, that Patrick ought not to be allowed to recover, for the use of Red-wine, the assignee, because he, McWilliams, had a set-off against Patrick, consisting in the money due by Patrick on his note given to him, McWilliams, in payment for the land.

It is apparent on the face of this plea, that when it was hied, McWilliams had notice of the assignment to Redwine, and had not settled with Patrick.

The time when the plea was filed, therefore, must have been before the time of the sayings of Patrick, for those sayings were to the effect, that there had been a settlement.

It must follow, therefore, that at the time of those sayings, McWilliams had notice of the assignment.

These things being so, we cannot agree with the counsel for the defendant, and say, that, although the Court may have held wrong, the error did no harm.

We think, that the sayings of Patrick were improperly admitted, and therefore, that the motion for a new trial ought to have been granted.

It is proper to remark, that the bill of exceptions discloses no evidence in support of the second plea of the defendant, and therefore, that the matter of that plea, is disregarded altogether, in the making up of this opinion. This opinion goes upon the supposition, that there was merely a bond for titles, and that there was not a counter bond of any soft.

Judgment reversed.