Davis v. Christy

S.cott, J., delivered, the opinion, of the Court. Christy, as assignee of James M. Foster, sued Davis in a justice’s court, on a bond executed by Davis to Foster, for the sum of $82. The cause was taken to the Circuit Court, where Christy recovered judgment, from which Davis appealed., On the trial in- the Circuit Court, Davis, to defeat Christy’s right of recovery, objected to the reading of the bond, and the assignment thereon, as evidence; and in support of this objection proved, that James M. Foster, the obligee of the bond, assigned it for a valuable consideration to N. B. Holden, by a writing endorsed on the bond, and signed by Foster; that some six months thereafter, Holden brought the bond to Foster with the assignment cancelled, and requested him to assign the bond to Christy, which Foster accordingly did, making it without recourse against himself. The court overruled the objection, and- a verdict and judgment were entered for Christy. The question is, whether Christy had a right- to recover under this state of facts ? It seems well-settled, that the statute concerning bonds and notes makes the assignee the legal owner of the instrument assigned, and consequently, that it is erroneous to institute a suit in the name of the obligee or payee- after an assignment. (Jeffers vs. Oliver, 5 Mo. Rep., 434.) That statute also gives the maker of a note, or obligor of a bond, a right of set-off against the assignee. It is not pretended that Foster, in making the assignment to- Christy, acted as- the agent of Holden; if he-did, he failed to execute his-power in such a manner as to-bind or affect- Holden. It is- said the cancellation of .the assignment by Holden- re-vested the legal ow.neirship.of the bond in Foster^ We cannot, see on what principle such [571] a consequence follows from the cancellation of the assignment. It does not appear that the cancellation was made with any such motive, for it was done without the knowledge or consent of Foster, but with a view to destroy the evidence of the fact that Holden had been the legal owner. The law will not permit a cancellation to be made when the interests of the obligee may be affected by it. If the obligee’s' right of set-off would exist against the assignee, notwithstanding the cancellation of the assignment, yet the proof of the facts necessary to entitle him to it is rendered more difficult. The case of Drummond vs. Fletcher (2 Wash.) is not like the present. No evidence of the cancellation of the assignment was given by the party, and the question wras one of variance between the proof and declaration. The objection was, that a cancellation was made, without proving the fact. The circumstances attending this transaction are suspicious. Holden takes the bond and retains it for some six months, and then, instead of assigning it immediately to Christy, as he might have done, he cancels the assignment made to himself, not with the assent of Foster, or with a view to give him any interest in the bond, but, as it would seem, to obliterate the evidence of the fact that he had ever been the owner of it. He uses Foster simply as an instrument, who, showing the capacity in which he acted, assigned it to Christy without recourse. Nothing is better settled than that the holder of a promissory note, whether it be negotiable or not, may strike out blank endorsements; Such, however, does not seem to be the law with regard to endorsements in full, which confer a legal title to the instrument. The law on this subject does not seem to be well settled; at least there is great conflict of authority, whether the mere'possession of a promissory note by an endorser who has endorsed it to another while the assignment remained, is sufficient evidence of his right of action against his endorser, without a re-assignment or receipt from the last endorser. — Mendez vs. Carreroon, 1 Lord Ray, 742; Gorgeat vs. McCarty, 2 Dal.; Bank of Utica vs. Smith, 18 Johns.; Welch vs. Lindo, 7 Cranch, 159; Dugan vs. United States, 3 Wheat., 172; Nevins vs. Degrand, 15 Mass. Rep., 436. However the law may be on this subject, in cases unaffected by any statutory provisions, we think that, under our statute, the course pursued by the assignee, Holden, cannot be sustained. We do not feel ourselves called upon to express an opinion as to the mode to be adopted to recover the debt, if any recovery can be had. Whether a suit can be brought, and the form of it, must be determined entirely by the circumstances, which do not appear on the record. The other judges concurring, the judgment of the court below is reversed.