Parkhurst v. Dickerson

Morton J. delivered the opinion of the Court. In this action the plaintiff seeks to recover on an order, drawn in his favor, on the defendants, by one Graham, for his share of the proceeds of a whaling voyage in the defendants’ ship. The first inquiry is, whether the defendants accepted the order declared on. It is manifest, that they did not. The evidence, as reported, shows a refusal to make an absolute acceptance ; and the strongest inference that can be drawn from it, is, that the acceptance was conditional. The agent of the owners having declined to accept the order, told the plaintiff he would take it, subject to his control, and when the ship returned, if the drawer consented, he would save it or try to save it for him. On the return of the ship, he applied to the drawer, who refused to give his consent to the payment, thus entirely defeating the conditional undertaking. Grant v. Shaw, 16 Mass. R. 341. But although the order was not accepted, yet the plaintiff contends, that it was an assignment of the drawer’s lay or share of the voyage ; that the defendants had notice of it, before they paid it over ; and that he can now maintain an action for it in his own name. If this doctrine be correct, then whenever the drawer has funds in the hands of the drawee, the payee may maintain an action against the latter, without a presentment or acceptance, and thus a debtor may have his liability transferred to a stranger without his consent, and when he has taken care not to give a negotiable security. It would in a great measure destroy the difference between negotiable paper and choses in action not legally transferable. There is no doubt that a debt or other chose in action may be assigned in equity, and that one of the incidents of the assignment will be a legal authority to use the assignor’s name to enforce it. But we know of no authority or principle, which will support an action in the name of the assignee. The order in this case, probably, was a sufficient assignment [310] to transfer to the plaintiff an equitable interest in the drawer’s share of the proceeds of the voyage in the defendants’ hands, and to form a good consideration for an express promise. The assignment of a debt, either uncertain or liquidated, with notice to the debtor, may impose on him an equitable or moral obligation to pay the amount due to the assignee. But nothing is better settled, than that it will not raise an implied promise noi support an action in the name of the assignee. Crocker v. Whitney, 10 Mass. R. 316 ; Mowry v. Todd, 12 Mass. R. 281 ; Usher v. D’Wolf, 13 Mass. R. 290 ; Gibson v. Cook, 20 Pick. 18. If there be an express promise to pay in this case, it is probably a valid one and may be enforced. But we have looked in vain for the evidence of it; and without it the action cannot be sustained. The nonsuit must stand and judgment be rendered for the defendants.