Berringer v. Wengenroth

Headnote

Tender of assignment of judgment — necessary to maintenance of action to recover of notes on which it is the consideration.

Appeal from a judgment entered on the verdict of a jury.

In this case the plaintiff sought to recover upon one of two notes, given by the defendant to George Fulling, the consideration for which was the assignment of a judgment held by him against William Wengenroth, the defendant’s brother. The first note was

paid. The issue upon the trial was, whether the assignment of the judgment was to be made after the payment of the first note, or on the payment of both. It appeared, however, on the trial, that subsequent to the maturity of the note in suit, it was transferred to the plaintiff, and the judgment assigned to him also. There was no offer made by him to assign the judgment, at any time, and when, upon the close of the case, the judge was requested to charge that he could not recover without such an offer, the request was refused and exception taken to the ruling thus made. The consideration of both notes was the assignment; it was the whole consideration.

The court held, that if either party would sue upon this agreement, the plaintiff for not paying or the defendant for not transferring, the one must aver and prove a transfer or a tender, and the other a payment or a tender. (Per Holt, Ch. J., Gallenovel v. Briggs, 1 Salk., 112 ; Payne v. Lansing, 2 Wend., 525 .)