Simonds v. Pierce

The opinion of the court was delivered by Royce, J. It appears that the plaintiff and one Osgood were partners in business, and that during the existence of the partnership the defendant became indebted to them. That on the 19th day of September, 1877, the plaintiff purchased of Osgood all his interest in the property of the firm, and all choses in action due to the firm, which purchase included the debt due from the defendant. Soon after making said purchase, the plaintiff informed the defendant that he had purchased said claim against him, and demanded payment. The defendant replied that he understood that he had bought out Osgood, and owned the account, and that he would come in and settle it with him ; and at a subsequent interview, upon the plaintiff’s demanding payment, the defendant promised to come in and pay the plaintiff on a day which was agreed upon. The defendant failing to pay, this suit is brought by the plaintiff alone, declaring in his new declaration upon said promises made to him. No defence was made by the defendant, but subsequent attaching creditors who have been permitted to enter, insist that there was error in the judgment below, for the reason that the suit was not brought by the proper party, and claim that it should have been in the name of Simonds & Osgood. Since the decision in Moar v. Wright, 1 Vt. 57, it has been [470] regarded as settled law in this State that the transfer of a nonnegotiable chose in action whereby the assignee became the absolute owner, furnished a sufficient consideration to sustain a promise by the debtor to pay to the assignee, and that an action might be sustained upon such promise in the name of the assignee. The cases which sustain that rule are referred to on the 48th page of Roberts’s Digest. It is claimed that what was said by the defendant in the interviews between him and the plaintiff, did not in legal effect amount to a promise to pay the claim to him. The language made use of by the defendant must be construed with reference to the facts and the subject-matter about which he was conversing. He then knew that the claim that he was speaking of was the property of the plaintiff, and must have understood that the demand of payment was made as owner. With that knowledge and understanding he made the promises relied upon; and it seems clear to us that the promise was in fact, and in legal effect, to pay to the plaintiff alone. It follows that the suit was rightfully brought in the name of the plaintiff, and that there was no error in the judgment. This disposition of the case renders it unnecessary to decide the question made in argument, as to the right of an attaching creditor to make the defence which was made. Judgment affirmed.