Majority
p. 177Charles F. Winthrop v. Theodore A. Meyer and another.
Headnote
An assignor of a claim is not, within the meaning of § 399 of the Code, a person for whose immediate benefit an action thereon is prosecuted, although the assignment expressly covenants that the claim is due and payable.Appeal by the defendant from a judgment obtained by the assignee of a claim. The appeal was founded upon the ground, principally, that the assignor had been permitted to testify in the plaintiff’s behalf, although the assignment contained an express covenant that the amount of the claim was due and payable.
Benjamin W. Kirkham, for the defendant.
William C. Hornfanger, for the plaintiff.
p. 178
By the Court.
The fact that the assignor had covenanted that the amount of the claim was due, and the consideration that he might become liable upon his covenant in the event of the plaintiff’s failure to recover, did not render him the party for whose benefit the suit was brought. He had an interest in the result which might affect his credibility, but which did not disqualify him from being a witness upon the evidence. The judgment cannot be disturbed.
Judgment affirmed.