Spiker v. Nydegger

Stewakt, J., delivered the opinion of the Court. The first and second exceptions refer to the admissibility of Townshend’s testimony. In the first the witness in substance testified, that as to the four executions, the originals of which were not produced, he had made “ the entries ” himself, from information communicated by the appellant. The subject of enquiry was not as to the legal effect of the returns of the officer. No matter what the character of the “entries,” if from an examination of them the witness was enabled to testify that the appellant admitted that he had received the money, his testimony could not pro [320] perly be excluded, although independent of the “entries” he’ had no distinct recollection of the fact. The second exception presents substantially the same question, and the ruling below in this, as well as the first exception, is strictly within the decision of this Court, in Martin vs. Good, 14 Md., 409, 410; Green vs. Caulk, 16 Md., 572. In the third exception the appellant complains of the rejection of the five prayers offered by him; and the instruction of the Court in the rejection of the third prayer. By the first prayer the appellant insists that he is not liable, if the evidence establishes the fact that the claims of the appellee were placed in his hands, as constable, for collection. If the appellant had collected the claims, and held the money of the appellee at the institution of this suit, we are not aware of any law to protect him from paying it over to the appellee, or to bar its recovery from him in this form of action. Holding moneys of the appellee in his hands, which ex cequo et bono he ought to pay over, the law will create an assumpsit on his part to pay the appellee. Vrooman vs. McKaig, 4 Md., 454. The fact that the appellee may have another remedy against him, on his bond as an officer, for not discharging his duty as such officer, does not preclude him from his election to recover in this form of action for money had and received. Nor could the Court below properly grant the second prayer.. The claims of W. F. Nydegger were assigned in writing to the appellee, by C. Nydegger for W. F. Nydegger, and C. Nydegger proved that he had verbal authority from W. F. Nydegger to make such assignment. Such authority was sufficient, if proved, and W. F. Nydegger could authorize another, by parol, to assign the claims belonging to him; and payment by the appellant to the assignee, would estop ■ him from recovery from the appellant. The third prayer of the appellant was properly rejected, and there was no error in the Court’s instruction to the jury, on the question involved in that prayer. [321] Whether the appellee could maintain the action in his own name for the recovery of the money on the claims collected by the appellant, depended upon the fact of their assignment to the appellee, and the collection of the money by the appellant, and that was a matter to be ascertained by the jury. If there were any evidence upon the subject, the Court was not authorized to withdraw the determination thereof from the jury. There was evidence to go to the jury as to the assignment to the appellee and the collection of the money, and to which no objection had been made by the appellant. The original holder of the claims having parted with the possession and assigned them as described by the evidence, if the jury so believed, his interest became transferred to the appellee. The claims were transferred, and the suit instituted for the recovery of the money collected by the appellant, and the appellee’s right of recovery grew out of the collection of the money, and was only dependant upon the assignment so far as the appellant had collected the money. It would be giving a very narrow construction to the law, authorizing assignees to sue in their own names, and not justified by the spirit or letter of the same, to confine its operation to a single assignment — the language, “ signed by the person authorized to make the same,” has a much more liberal and enlarged interpretation, and embraces any number of assignments, and assignments by persons having parol authority, if the assignments themselves be in writing. The peculiar language employed negatives the construction contended for by the appellant, and very clearly has a much wider range. Whether the whole or any part of the claims of the appellee was barred by the appellant’s fourth plea of limitation, was a question to be determined by the jury from all the evidence. Eor reasons already stated in disposing of the second and third prayers, the Court could not grant the fourth prayer. The judgment of E. Berg, use of C. Nydegger, referred to in the fifth prayer, belonged to the said C. Nydegger, by intend322 meat, from the entry for bis use on the docket, and in the absence of any proof to the contrary, must be presumed to have been legally assigned to him, and for the reasons already advanced could be assigned by him to the appellee. (Decided 11th March, 1869.) There is, therefore, no error in the refusal to grant the fifth prayer. Judgment affirmed.