Jessel v. Williamsburgh Insurance

Headnote

The assignee of a personal contract cannot sue for a breach of it in his own name, even though the assignment was made with the consent of the defendant; but to give such right there must be. an express promise by the latter to be responsible to the assignee.

Accordingly, where a fire policy was assigned by the insured, and afterward a loss happened; held, that though the transfer was made with the consent of the underwriters pursuant to a provision contained in the policy, the assignee could not recover for the loss in his own name.

Error to the superior court of the city of New-York. Jessel sued the defendants in assumpsit, on a policy of insurance entered into by them, wherein they engaged to insure one Charles E. Sheward against loss by fire for one year, upon certain property in which the latter had an interest. The policy bore date July 26th, 1838, and the property was destroyed by fire on the 24th of January 1839. The following clause was contained in the policy : u The interest of the insured in this policy is not assignable unless by the consent of this corporation (the defendants) manifested in writing. And in case of any transfer or termination of the interest of the insured either by sale or otherwise without such consent,, this policy shall from thenceforth be void and of no effect.” On the 16th of October 1838, the defendants gave their written consent that the policy might be assigned to Jessel, the plaintiff; and on the same day Sheward assigned it accordingly. Among other objections urged by the defendants against the right of recovery claimed, they insisted, that th.e action would not lie in the

name of Jessel, but should have been brought in the name of Sheward, the assignor. The court below sustained the objection and nonsuited the plaintiff, who excepted, and, after judgment, sued out a writ of error.

C. O'Connor, for the plaintiff in error, insisted, that the action was maintainable in Jessel’s name. The policy is a simple contract, capable of subsequent modification by the consent of parties. It originally provided in terms for a change of parties. The plaintiff, the defendants and Sheward, consented to the substitution of the former as the insured, in the place of Sheward j and Jessel thereby became invested with the entire legal interest in the contract. The sole reason for the non-assignability of choses in action—viz. the prevention of maintenance—is inapplicable to a case where a new promisee is introduced by consent.