Keefe v. Flynn

Morton, J. The allegations of the plaintiff’s declaration are, that O’Connell made to him an assignment, of which a copy is annexed; that he notified the defendant thereof; and that the defendant promised to pay to the plaintiff, under said assignment, such sums as should become due to O’Connell from him. It cannot fairly be construed as alleging a promise by the defendant to pay any sum not included in the assignment. It is true, as claimed by the plaintiff, that if he had a valid assignment by O’Connell, of any sum due or which would become due under an existing contract with the defendant, and the latter accepted the assignment and promised to pay to the plaintiff, he could maintain an action in his own name upon such express promise. Such assignment and promise would make the defendant liable to the plaintiff, and discharge his liability to O’Connell, his original debtor, and this would furnish a sufficient consideration for his promise. Burrows v. Glover, 106 Mass. 324, and cases cited. But the difficulty in the plaintiff’s case is, that his assignment does not include the debt due under the building contract between O’Connell and the defendant, the amount of which he claims in this action. By that contract, O’Connell was to build j, house according to certain plans and specifications, and the defendant was to pay therefor $300 when the house was boarded, $300 when it was ready for plastering, and the balance when it was finished. These were to be general payments on account of the house, including all materials and labor furnished. [566] The plaintiff has no assignment of the contract, or of the amounts which would become due under the contract. His assignment is of “ all that may become due me from said Flynn until the 1st day of January, 1873, for labor performed or to be performed by me for said Flynn.” The only alleged promise of the defendant was to pay to the plaintiff the amount included in this assignment. This does not render him liable for the sum of $300 claimed in the declaration, and therefore the presiding justice of the Superior Court correctly ruled that the plaintiff could not maintain this action. Judgment on the verdict.