Opinion
Appeal from the District Court of the Sixth Judicial District.
Action by the assignees of an account of balance due, and for foreclosure of a mechanics' lien therefor. Complaint filed November 10th, 1855. The errors assigned, are fully stated in the opinion of the Court. Judgment for plaintiff in the Court below. Defendant appealed.
COUNSEL
Long & Judah, for Appellants.
Harmon, Sunderland & Stanley, for Respondents.
JUDGES: The opinion of the Court was delivered by Mr. Chief Justice Murray. Mr. Justice Terry concurred.
OPINION
MURRAY, Judge
This was an action in the Court below, to recover the balance of an account due from the defendants to Jonathan Nutt, and by him assigned to Ryan & Callahan, the present plaintiffs. The assignment is in these words: " Assigned to Ryan & Callahan. Jonathan Nutt."
The answer admits the amount due upon account, but denies any knowledge of the genuineness of the assignment.
On the trial, the defendants objected to the admission of the assignment, and the Court allowed the plaintiffs to fill up the same by adding the words, " For value received, I hereby assign the within account; " leaving the names to stand.
It is contended that this account was not assignable, so as to enable the assignee to maintain an action, in his own name, under the provisions of the 4th section of the amended Practice Act, passed May 15th, 1854. The right of assignment existed before the passage of the Act, and the right of the assignee to sue in his own name, is given by the first section of the amended Practice Act, passed May 7th, 1855.
There was no error in permitting the plaintiffs to fill up the assignment; it was sufficient in the first place, and in this view the additional words may be treated as surplusage.
In the case of Lacey v. Collins, 2 Southard (N. J.) 489, cited by the appellants, it was held that the assignee could not sue in his own name, and if he could, the simple endorsement of the assignor's name on the back, was not a sufficient evidence of assignment. This case differs from the one before us; first, because our statute authorizes such assignments; and second, because the endorsement is sufficient to show the intention of the parties.
Judgment affirmed.