Devol v. Barnes

Headnote

Pmty in interest— Promissory note — holder of, when can sue.

Appeal from judgment in favor of the plaintiff, entered on the verdict of a jury.

This action was brought to recover the amount of a draft and four promissory notes made by the defendant. The draft was drawn by the defendant on the plaintiff, and was accepted by him. The answer set up payment of the draft, bnt no defense to it was made upon the trial. The notes were made by the defendant to other parties, and were indorsed by them before suit to the plaintiff. It appeared upon the trial that the notes were delivered to the plaintiff by the payees, under an arrangement, in substance, that he should go from New Albany, Indiana, to the city of New York, and collect the notes, and then account to the respective indorsers for the proceeds of the notes over and above their respective shares

of plaintiff’s expenses and the expenses of collection. The defense relied upon was, that the plaintiff' was not the real party in interest.

The court at General Term say: “ The legal title of the claim sued upon is very clearly vested in the plaintiff. * * * The plaintiff

received transfers of the notes, undertook their collection at his own risk, and his right to the expenses which he might incur in coming to New York and in collecting the notes depended upon his success. He was not at liberty under the arrangement to subject the former owners of the notes to any expense by bringing suits in their own names, but was to collect in his own name and account for the proceeds. This was the substance of the arrangement, and it gave him the legal title and perhaps it might be said to have made him a trustee under an express trust.”