Castner v. Austin Sumner & Co.

By the Court. I. Atwater, J. The Appellants claim that the Court below erred in refusing to charge the jury as requested by their counsel on the trial of the cause. Erom the testimony as reported, there may be a question as to whether the'assignment of the notes was absolute, or whether a contingent interest remained in the assignor, as claimed by the counsel for the Appellants. But in either case the action is properly brought in the. name of the Plaintiffs. It is clear from the evidence, that the assignor intended to give them the right to collect the notes. The bond taken by Wilson shows this conclusively. It appears from the testimony of Mr.' Otis, that a bond was given to Wilson, (the assignor of the notes,) conditioned, that if the Plaintiffs should realize on these notes more than the claim of Plaintiffs against Wilson, and expenses of collecting the notes, the balance was to be paid to the assignor. The Plaintiffs then were to receive the money, and if authorized to receive it, the right to bring suit to collect it, necessarily follows. The assignor relinquishes all his rights against the makers of the notes in favor of the Plaintiffs. He gives them authority to receive the whole, and looks to. them only for the balance, should there be more than sufficient collected to satisfy the demand of the Plaintiffs against him. Whatever may be the relations of the Plaintiffs to the assignor, can make no difference to the Defendants. They can only raise the objection of a defect of parties to^the suit, when [48] it appears that some other persen or party than the Plaintiffs have such a legal interest in the note, that a recovery by the Plaintiffs would not preclude it from being enforced, and they be thereby subjected to the risk of another suit for the same subject-matter. But Wilson clearly had no such legal interest. He had no interest in the notes, and not even a certam resulting-interest in the proceeds of the notes, but only a contingent interest in the proceeds. Had Wilson, or the assignees of his bond been joined as Plaintiffs, it might have properly been objected by the Defendants, that they had no certain interest in the note, and no claim whatever against the Defendants ; their claim, if any they should have, being against the Plaintiffs in this action. . In the ordinary case of notes deposited as collateral security for an indebtedness, they are regarded in the light of a pledge, and the parties sustain to each other the relation of pledgor and pledgee. Garlick vs. James, 12 John. 146; 2 Crain’s cases in Error, 201; Story’s Com. 197; Kent’s do. Vol. 1, 577; McLean vs. Walker, 10 John. 471. The most of the questions that have arisen on this kind of security, relate to the right of disposal of the pledge on the part of the'pawnee. The rule seems to be settled that the pawnee has a special property only in the pledge until default of the pawnor, in payment of his debt, whereupon, upon notice to the pawnor, or by judicial proceedings, as the case may require, the pawnee may sell the pledge. If he may sell, the party purchasing, of course acquires a good title, and may enforce payment by suit, a right which must also belong to the pawnee in case he chooses to exercise it, without sale. And it has been held that a pawnee may recover the full value of the pledge in trespass against a stranger who takes it away, although pledged to him for less, being answerable to the pawnor for the excess. Lyle vs. Barker, 5 Burn. 457. But in the case at bar, no question arises between the paw-nor and pawnee .as to the right of the latter either to sell the notes or enforce collection of them. The only objection is on the part of the makers of the notes, that the Plaintiffs are not authorized to bring suit, without joining other parties as Plaintiffs. In Bowman vs. Wood, 15 Mass. 534, it was held, [49] that the Plaintiff, (who was a deputy sheriff,) who had received a promissory note as a pledge or collateral security for an execution held by him, might maintain an action in his own name against the maker; that the endorsement of the note by the payee was a transfer, sufficient to enable the Plaintiff to maintain the action, for the endorsement comprehended an authority to bring a suit, and to receive the money of the promissor. ” And in Stevens vs. Bell, 6 Mass., it was held that goods may be pledged to a creditor and he have the right to sell the pledge, pay himself, and account to the pawnor for the surplus; and that when the pawnee exercises this liberty, he becomes a trustee of the pawnor. This ruling would be analagous to the holding of the Supreme Court of this State, (1 Min. Rep., 241,) in which the Court say, (speaking of the assignment of choses in action,) that See. 29, p. 333, Rev. Stat., “ seems to regard such an assignment as of the same effect as an absolute one, upon the right of the assignor to prosecute the demand assigned, for it recognizes the right of the assignee to sue thereon, and permits him to bring the action without joining the eestuis que trust. ” That ruling would seem to be the proper construction of the statute referred to, and I see no reason why the principle may not equally apply to the case at bar, although the right of the Plaintiffs to bring the action maybe sustained on other grounds. The object of the provision of the Statute, requiring the action to be prosecuted in the name of the real party in interest, would seem to be principally to do away with the- artificial distinctions which formerly existed in Courts of law, and to require the presence of such parties as are necessary to make an end of the controversy. The action was properly brought in the case at bar, in the name of the Defendants in error, and the judgment below must be affirmed.