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Robinson agt. Weeks.
operation of law, and he may bring his action for the original tort, or proceed and retake the property, as he may elect.
This view of the case answers the defendant's second objection to the assignment, that there was no judgment when the assignment was executed.
The assignment carried the whole title to the subject matter of the action, and of course to the judgment, when perfected. As between the parties to the assignment, clearly the whole right passed to the assignee, and the defendant the moment the judgment was perfected, became the debtor of the assignee and not of the nominal plaintiff. Nor was any notice to the defendant necessary except for the purpose of protecting the assignee against the acts of his assignor.
The defendant's counsel also contends that the payment to the sheriff on the two executions in his hands in favor of Smith against the plaintiff to the amount of this judgment, operates as a satisfaction and discharge of the same, even conceding the validity of the assignment, in as much as the defendant had no notice of the assignment, and the code authorizes such payments to be made by any debtor of judgment debtors.
The Code, 9 393, provides that “after the issuing of execution against property, any person indebted to the judgment debtor may pay to the sheriff the amount of his debt, or so much thereof as shall be necessary to satisfy the execution, and the sheriff's receipt shall be a sufficient discharge for the amount so paid."
The difficulty in the way of the defendant is that at the time of making these payments to the sheriff he was not in fact indebted to the judgment debtor, whose debts he volunteered to pay.
The nominal plaintiff here had at that time no debt or demand against the defendant, which he could enforce at law or equity. It will hardly answer, I think, to say that as he had received no notice of the assignment he had a right to regard himself as the debtor of the plaintiff, and is therefore to be protected. The Code, it is true, authorizes a debtor of the judgment debtor to pay the amount of his debt upon any execution against the latter in the sheriff's hands; but it does not make it his duty to do so.
Robinson agt. Weeks.
It imposes no obligation upon him whatever; and if a party indebted, instead of paying his debt to the person to whom he supposes himself indebted, and where he might learn the true state of the matter, chooses to go and pay another debt, which the law does not require him to pay, and to a person who has no opportunity of knowing whether or not he is really the debtor of the person whose debt he undertakes thus to satisfy, I think he does it at his peril. He must see to it that he pays his creditor's debt or the law will not protect him. He should be regarded as a volunteer, taking the risk of paying the right debt. Had the defendant paid to the nominal plaintiff the amount of the judgment and taken his discharge, without notice of the assignment, he would, without doubt, have been protected. Such payment and discharge would have been good against the assignee omitting to give notice of his rights. But the assignee in that case would have had his remedy against such nominal plaintiff by an action for a breach of the implied conditions of the assignment. Here, however, the party assigning has done nothing in violation of the assignment. The opposing affidavits show that the payments were made upon the executions against him without his knowledge or approbation and against his wish. The assignee, therefore, can not allege that the plaintiff has done any thing in violation of the express or implied conditions of the assignment, and consequently has no remedy upon the agreement. The assignor impliedly agrees in every assignment where it is not embodied in express terms, that he will not collect or discharge the judgment himself, nor interpose any obstacle to its collection by his assignee. But it would be going quite too far to hold that he impliedly undertakes to pay all demands that do then or inay thereafter exist, against him before judgment and execution, and thus prevent all other persons from satisfying the judgment under this extraordinary provision of the Code. If these payments to the sheriff were to operate to discharge the judgment as against the assignee, this anomalous result would be produced. The assignee not only has judgment satisfied and discharged without any equivalent, but is deprived of all remedy against his assignor, while a third person,
Slocum and Walker agt. Hooker and another.
a total stranger to both the real plaintiff and the defendant in the judgment, who had no right or claim to it in law, or equity, or ethics, succeeds in collecting it and retaining the money without being liable to any one. It is clear that Smith, by no proceedings at law or equity, could have obtained the amount of this judgment against the assignee. A general assignment to a receiver under the order of the court, or the bankrupt or insolvent laws by the nominal plaintiff, would have given such receiver or assignee no title to the judgment as against the assignee, even without any notice whatever (Muir vs. Schenck, 3 Hill, 228). Smith had no equities as against the assignee. His executions were no lien upon the claim when assigned, and the assignee was not bound to take notice of them or inquire after them. This was held by WILLARD, Justice, in Countryman vs Boyce (3 How. Pr. R. 386), as I think, correctly. The assignee of judgments and choses in action, will be
protected against executions in the hands of the sheriff.
The Code has not gone quite so far as to make judgments and executions issued thereon liens upon choses in action, or a notice equivalent to a lis pendens. The defendant has not paid the debt of the right judgment debtor, in this case, and the judgment still remains unsatisfied against him.
The order of the special term must, therefore, be affirmed.
SLOCUM AND WALKER agt. HOOKER AND ANOTHER. Whether a contract between an infant and the party with whom he contracts,
is to be regard as absolutely void or merely voidable, any other person can not take advantage of the existence of such a contract, because it is sufficient to show that it was made with a person whom the law pronounces incapable
of contracting. Therefore an infant joint contractor or copartner may be disregarded entirely,
and left out, in bringing an action against the contractors or firm.
Rensselaer Special Term, February 1851. Demurrer to plaintiff's reply. The action was brought against James H. Hooker
Slocum and Walker agt. Hooker and another.
and Pope Catlin, to recover damages for non performance of a special contract. The defendants, among other things, alleged that Richard H. Pattison at the time of making the contract was a copartner with them, and was, and still is, jointly interested with them in the contract. The plaintiff replied that Pattison was an infant, and the defendants demurred.
JOB PIERSON, for Plaintiff.
Harris, Justice.-Whether the contracts of infants are to be regarded as absolutely void, or merely voidable, is a question which has been much discussed, and which, so far as it depends upon the discussions to be found in the books, is still left in great confusion. “ The tendency of the modern decisions," says Chancellor Kent, “is in favor of the reasonableness and policy of a very liberal extension of the rule, that the acts and contracts of infants should be deemed voidable only, and subject only to their election, when they become of age, either to affirm or disallow them” (2 Kent's Com. 235). It is also a general rule, that no one but the infant himself, can avoid his voidable contract. If, therefore, the contract of an infant be voidable merely, and the infant alone can avoid it, how can it be treated as void, until the infant has made his election to disaffirm it? If the contract is not void until the infant chooses to say it is void, then, indeed, the contract upon which this action is brought is not the contract of the defendants alone, but Pattison, the infant, must be held to be a joint contractor with them. This reasoning would lead the plaintiffs into this dilemma. On the one hand, if they sue all the contractors, they must fail in their action, upon a plea of infancy by one. This is the English rule. In Chandler vs. Parks and Danks (3 Esp. 76), Parks pleaded the general issue, and Danks pleaded infancy. The plaintiff entered a nolle prosequi as to Danks, and proceeded against the other defendant. Upon the trial he was nonsuited; Lord Kenyon holding that he should have discontinued, and brought a new action against Parks alone.
Slocum and Walker agt. Hooker and another.
The same doctrine was followed by Lord Ellenborough in Jaffray vs. Freebairn and others (5 Esp. 47), where it was held that the plaintiff having declared upon a joint contract, could not convert it into a sole contract, by discontinuing against one of the contractors, but that he ought to have declared on it as a sole contract from the beginning.
On the other hand, if they sue only the adult contractors, these will plead in abatement the non joinder of the infant joint promissor, and the action will be defeated. For then, it will be said as it is said in this case, that infancy is a personal privilege, of which none but the infant himself can take advantage. Upon one horn or the other of this dilemma every party seeking to enforce a contract made by several parties, some of whom are adults and others infants, must be suspended, if the rules already stated, that the contract of an infant is only voidable, and that the infant alone can avoid it, are to be maintained without qualification.
In Hartness vs. Thompson (5 John. 160), the action was brought upon a joint and several note, made by Sarah Nelson, then a feme sole, and who, subsequently, intermarried with the defendant Thompson, and by Joseph Nelson. The latter pleaded infancy. Upon the trial the jury, under the direction of the circuit judge, found a verdict against Thompson and wife for the amount of the note, and in favor of Nelson upon the plea of infancy. The decision at the circuit was sustained, but Van Ness, J., in delivering the opinion of the court, says, “If the note had been joint, instead of joint and several, it is not easy to discover any method of enforcing payment against Thompson and wife, without making Nelson a party to the suit. Suppose in that case, the plaintiffs should bring a suit against the former only, it appears impossible to maintain the action in any other way, than by their showing the infancy of the latter. If this be
may be asked, whether it would not be unprecedented, to allow the plaintiffs to take advantage of the infancy of one of the parties to the contract, for the express purpose of enforcing it against the others, and whether such a procedure would not be a direct