Herring v. Downing

Field, J. The jury returned a verdict for the plaintiff upon the third count of the declaration only. The defendant asked rulings, which were refused, that, upon the evidence, the action could not be maintained, because the right of action had vested in the plaintiff’s assignee in insolvency; that there was no evidence for the jury on the third count; and, generally, that, on the evidence, the action could not be maintained. The date of the petition .in insolvency of A. H. Herring and Son was September 13, 1883, and they were duly adjudicated insolvent debtors on October 16, 1883, and Amos W. Downing was appointed assignee. The alleged contract was made on or about June 11, 1883. Whether this contract was, at the time the assignment in insolvency took effect, such an executory contract for personal services that it did not pass to the assignee, need not be decided, because, if it was not, an action could be brought, in the name of the plaintiff, for a subsequent breach of it by the defendant, if the assignee assented, and there was abundant evidence that the assignee had assented to the plaintiff’s maintaining the action in his own name. Hallett v. Fowler, 10 Allen, 36. Gay v. Kingsley, 11 Allen, 345. Mayhew v. Pentecost, 129 Mass. 332. Squire v. Lincoln, 137 Mass. 399. Powers v. Raymond, 137 Mass. 483. There was evidence for the jury, that the parties entered into the agreement set out in the third count. The plaintiff testified that the defendant “ said he would take the bill of sale, and give his note for that amount, and then said that we might go on as before, and continue to manufacture, and raise the amount of the indebtedness, the forty per cent; and that, if there should be anything over, after paying that, it should be mine.” There [17] was other evidence, that, in addition to the payment of the note given by the defendant, which was in amount forty per cent of the whole indebtedness of A. H. Hei’ring and Son, it was agreed that the plaintiff should pay in full the claim of Amos H. Downing and Company against A. H. Herring and Son. The whole consideration of this agreement, as proved, is not set out in the third count; but, as we construe the exceptions, this objection was not taken. If it had been, the defect could have been cured by an amendment. There was evidence of the promise or agreement declared on, and that this promise or agreement was founded upon a sufficient consideration, a part of which is properly described in the declaration. .Exceptions overruled.