Sandford v. Conant — 4 N.Y. Super. Ct. 143

Majority

p. 143

Sandford v. Conant.

Headnote

An assignment of a party’s “ right and title to certain insurance money my due, and now in the hands of,” Sec., will pass the right of such party to the money-due upon the insurance, although it has not been paid to the person mentioned as having received it.

S. having a right to receive insurance money from C., or from parties who had insured C. for his benefit, assigned his right to tí. The money was subsequently received by C. from the insurers. Held, that it was money had and received to the use of N., and not to the use of S., and that an action for money had and and received, could not be maintained in the name of S.

Sept. 22 ;

Oct. 7, 1848.

Assumpsit for money had and received, and on an account slated.

It was proved on the trial, that on the 28th of October, 1846, the defendant, a jobbing merchant in New York, sold to the plaintiff, residing in Southport, Wisconsin, a bill of goods amounting to $256 48, and received the plaintiff’s note at six months. On the 29th October, 1846, he sold to the plaintiff for cash, to be paid within thirty days, another bill of goods of $95 36. The goods were shipped to Southport, and the defendant insured them. No policy or contract of insurance in writing was made by the defendant, but the premium was charged in the bills of goods, and the amount included in the note of the plaintiff. The note, as well as the bill of goods for cash, remained unpaid at the time of the trial. The defendant effected an insurance in form, on these goods, with ten per cent, added to the invoice price; and on the 26th of April, 1847, received the entire amount from the insurers, the goods having been lost by the perils insured against, on their way to South-port. The defendant credited the sum thus received, to the plaintiff, against the debt due him from the latter.

On the 6th day of January, 1847, which was subsequent to the loss of the goods, the plaintiff assigned and transferred to Nixon & Bartlett of New York, in part payment for merchandise sold to him at the time, his claim against the defendant in

p. 144

respect of the insurance. The transfer was under seal, and as expressed therein, it assigned to N. & B., all the plaintiff’s “ right, title, and interest,, in and to . certain insurance money my due, and now in the hands of” the defendant, “ the amount. . being $349 74, insured by him for my benefit on goods shipped and lost on steamboat Boston with full power to receive and collect the same.

. Written notice of this assignment was given by Nixon & Bartlett to the defendant, on the 28th of January, 1847.

. A verdict was taken for the plaintiff, subject to the opinion of the court. ■

R. Goodman, and E. S. Van Winkle, for the plaintiff.

E. W. Chester, for the defendant.

The plaintiff claims to recover for money had and received, on the ground that the insurance money for the goods, was money received to his use, which he had assigned to Nixon & Bartlett, before the defendant had any right to retain it by way of set-off. And if wrong in this, he claims to recover under the count upon, an account stated, charging the defendant as an original insurer of the property. The defendant contends, 1st. That there were no moneys in his hands, at the time the assignment was made by the plaintiff to N. & B., and thus nothing passed to them by the assignment. 2d. If the assignment were operative, it vested in N. & B. the right to receive money, and' when received, it was. their .money and riot the plaintiffs, and they alone could sue for it. 3d. It was the defendant’s right to receive the insu- ■ ranee, and retain it towards ■ his demand against the plaintiff. And 4th. He had a right to set off such demand against the money received. . .

. First. Did the right to the insurance pass by thé assignment to Nixon & Bartlett? It purports to transfer the insurance money then in the hands of the defendant, when in fact he had received no money, and had merely a right of action. It also assigns all the plaintiff rs right tó thé insurance money then due

p. 145

to him; and on a liberal construction of the instrument, we hold it sufficient to assign whatever demand the plaintiff then had against the defendant, whether it was for money received, or was a right to recover against him as an insurer.

Second. Waiving the defendant’s claim to retain the insurance money, was it received by the defendant, to and for the use of the plaintiff, so that the action can be maintained in his name 1 We think Nixon & Bartlett are mistaken in their view of the relation existing between the plaintiff and the defendant, when this money was received by the latter. It was not received for the plaintiff, because he had parted with all his interest in it, and the defendant was notified of that fact. The money was received for Nixon & Bartlett, to whom it had been assigned. If the suit were upon a bond, or other demand not assignable at law, the suit would necessarily have been in the name of the assignor; but this action is brought on the ground, that the defendant has received money to which the plaintiff is equitably entitled, and it should have been in the name of the party thus actually entitled to it. Nixon <fc Bartlett should have sued in their own names.

If the contract be viewed as a direct insurance founded on the defendant’s agreement and receipt of the premium, then the pleadings are entirely insufficient to sustain the suit. That contract could only be enforced in an action on the case, or in a direct suit as upon an express insurance. The money cannot be recovered on a count for a balance due on an account stated.

Without looking into the remaining points, we must direct a judgment of nonsuit to be entered.