Cotting v. Foster

Hammond, J. This is an action upon a promissory note, brought in the names of the executors of the payee for the benefit of his estate and of the estate of George Foster, to whom the note had been delivered by the payee with a certain writing indorsed thereon. In the court below the action was dismissed on the motion of the plaintiffs themselves, and the case is before us upon an appeal from the order of dismissal by certain attorneys representing themselves as “ attorneys of record for the plaintiffs, and representing the estate beneficially interested in said suit.” We construe this as an appeal by those beneficially interested in the suit, except the estate of John Foster, made through their attorneys. The note is negotiable and the writing upon the back of it is in the form of a conditional indorsement. If therefore the writing conveyed to George Foster the whole note and the right to collect the whole, then upon the fulfilment of the condition he was an indorsee, and the action should have been brought by the personal representatives of him as such, and cannot be maintained in the name of the personal representatives of the payee, at least against their objection. Mosher v. Allen, 16 Mass. 451. See also Troeder v. Hyams, 153 Mass. 536; Story, Notes, (7th ed.) § 149 ; Robertson v. Kensington, 4 Taunt. 30. If, on the other hand, the writing conveyed to George only a part of the note and the right to collect only a part, then it can [566] operate only as an assignment of a part, and on well settled principles his representatives cannot maintain an action at law for that part in their own names, nor for the whole in their own names, or in the names of the representatives of the assignor without their consent. See Flint v. Flint, 6 Allen, 34, and James v. Newton, 142 Mass. 366, and authorities therein cited. Upon either view of the writing, therefore, this action is not maintainable. The cases of Grover v. Grover, 24 Pick. 261, and Merrill v. New England Ins. Co. 103 Mass. 245, cited by the appellants, are plainly distinguishable from this case. In the first case there was a gift of the whole note without any indorsement thereon, and, in the second, the question was whether the pledgee, having been appointed here an ancillary administrator of the estate of the pledgor, could maintain as such administrator an action in this State upon the policy notwithstanding the principal administrator in Illinois had brought an action in that State upon the same policy and that action was still pending. The policy was not negotiable. And in the language of the court the interest of the pledgee was “ not a mere order for a part of the proceeds, but” extended “to the whole policy alike.” 103 Mass. p. 250. Order dismissing the action affirmed.