p. 163Everit and others vs. Strong and another.Headnote
One of several partners may assign a chose in action due to the firm—e. g. an account.Such an assignment will be valid and operative, though under seal.
A demand assigned to the defendant before the commencement of the suit may be set off, though he has not actually paid for it, but only agreed to pay.
Motion to set aside the report of a referee. The action was assumpsit for goods sold and delivered; and, on the hearing before the referee, the defendants offered to set off an account against the plaintiffs contracted with the firm of Strong & Tolley ; the same having been assigned to the defendants by an instrument under seal, executed by Strong alone, before the commencement of this suit. It appeared that the defendants had not actually paid the sum agreed upon as the consideration of the assignment. The referee allowed the set-off and reported a balance due the defendants. It was now objected that the set-off was improperly allowed on the following, among other grounds: 1. That the assignment to the defendants, being under seal, and executed by only one of the firm of Strong & Tolley, was void; and 2. That the defendants were not bona fide owners of the demand.
S. Stevens, for the plaintiffs.
S. Sherwood, for the defendants.
The account was due to the firm of Strong & Tolley, and was assigned by Strong alone. No
p. 164doubt one of several partners has power to assign a demand due to the firm. He has power to sell any of the effects belonging to the partnership. He may negotiate its paper by endorsement or otherwise. The same principle which gives him such authority extends it to the equitable assignment of a chose in action. That a partner superadds a seal to an assignment will not vitiate it, any more than it would a sale of goods made by him under his hand and seal.
(Anderson v.
Tompkins, 1
Brockenbr. C. C. Rep. 456, 462,464.)
Whether the assignment to the defendants was bona fide or not, was a question of fact, in the decision of which the referee was clearly correct. It is insisted that a man is not a bona fide purchaser till he has actually paid the consideration. That is sometimes so; (Jewett v. Palmer, 7 John. Ch. Rep. 65 ;) but not in the sense of the statute of set-off. An obligation to pay the consideration comes to the same thing. If a man buy an account or note, with intent to set it off, giving his own note, he must pay it, though he fail to effect the intended set-off. He must run his risk of collecting the assigned demand by action.
The referee was right; and the motion to set aside his report is denied.
Motion denied.