Abrams v. Cureion
| Decision Date | 31 January 1876 |
| Citation | 74 N.C. 523 |
| Court | North Carolina Supreme Court |
| Parties | R. S. ABRAMS, Assignee, v. THOS. K. CUREION, Adm'r. of GOVAN MILLS, deceased |
A voluntary assignment of a promissory note, without consideration and for the benefit of the assignor, has no legal effect except to constitute an agency to collect; and such assignee, not being the real party in interest, cannot bring a suit on such note in his own name.
A written contract as follows, to wit: “I do hereby agree to receive as agent or assignee the notes above described, upon the following condition and terms, viz: If I can collect the said notes or any part thereof, I am to pay over the same to John Bankston Davis, retaining to myself a reasonable compensation in these notes for my services,” and the notes alluded to were also endorsed “I assign the within note to R. S. A. (the plaintiff) for value received,” is not such an assignment as will justify the assignee in bringing suit in his own name.
(The case of Willey v. Gatling, 70 N. C. Rep. 410, cited and distinguished from this.)
CIVIL ACTION to recover the amount of two promissory notes, tried in the Superior Court of POLK county at Fall Term, 1875, before his Honor Judge Schenck, and a jury.
In his complaint, the plaintiff alleges that as assignee, he is the owner of two notes, made by the intestate of the defendant, one payable to John Bankston Davis, and by him endorsed to the plaintiff, and another payable to one R. H. Reid, also endorsed by said Davis as attorney for Reid. That these notes were made in South Carolina and draw interest at the rate of seven per cent., and are still due.
The defendant denies that the plaintiff is the owner of said notes, alleging that they were assigned without consideration, and that the plaintiff is only an agent to collect. There are other allegations in the answer as to assets, & c., not material to the point decided in this court, and therefore need not be stated.
On the trial, the plaintiff in his own behalf testified, that the notes upon which the action is brought, were endorsed to him by J. B. Davis, and were in his possession when the action commenced. Upon his cross examination he stated, that he considered himself the owner of said notes; that he paid no money for them, but that he agreed to collect the same, retaining a reasonable compensation for his trouble, and pay over the balance to Davis.
The following contract in writing was then offered in evidence. After a copy of the said notes, (set out in the complaint,) it read: “I do hereby agree to receive as agent or assignee, the notes above described, upon the following condition and terms, viz: If I can collect the said notes or any part thereof, I am to pay over the same to John Bankston Davis, retaining to myself a reasonable compensation in these notes for my services. Witnes my hand, seal, & c., and signed by plaintiff.
The plaintiff also proved that the following endorsements on the notes were made at the same time of the signing of the foregoing contract: Signed by said J. B. Davis.
The defendant offered in evidence a paper purporting to be a transcript of a suit in equity, pending in Spartanburg county, and State of South Carolina. To this the plaintiff objected; whereupon the defendant proposed to prove by parol testimony, that W. D. Johnston was Chancellor of Spartanburg county, S. C., on the 4th day of June, 1868, at the time the injunction purports to be signed by him. To this plaintiff again objected and the objection was sustained. To this ruling of the court the defendant excepted. His Honor allowed the bill and answer to be read, but refused to hear the injunction, for the reason that it was not signed officially, and there was no evidence that it was ever served on Davis and Reid. Defendant again excepted.
It was also in evidence that the courts of law and equity or chancery, were consolidated in South Carolina, previous to the institution of this suit; and that the Clerk of the Superior Court is also the Clerk of the Equity or Chancery Court, and has control of the old chancery or equity papers and records.
The defendant asked his Honor to charge the jury, that upon the evidence offered, that the plaintiff was not entitled to their verdict on the first issue. Upon the second, that he was not the real party in interest in said notes, and that he has no such interest in said notes as would entitle him to bring an action in his own name.
The defendant asked his Honor to charge further, that as the notes upon which the action has been brought, were made in South Carolina and there was no evidence as to where the assignment was made, whether in North or South Carolina, the common law was presumed to prevail in South Carolina, in the absence of evidence to the contrary; and that according to the common law, said notes were not...
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State ex rel. Freebourn v. Merchants' Credit Service, Inc.
...actions, and not for another. The cases relied upon in the majority opinion do not militate against this view. The case of Abrams v. Cureton, 74 N.C. 523, was decided the theory that if the assignee be permitted to sue in his own name, the defendant would be prohibited from asserting defens......
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First Nat. Bank v. Rochamora
...and circumstances of the present action. "If the bank in truth held the notes for collection, it could not maintain this action. Abrams v. Cureton, 74 N.C. 523." Bank v. Exum, supra. If held for collection, the plaintiff not the real party in interest under our statute of Civil Procedure. C......
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Booker v. Everhart
...(1927); Third Nat'l Bank v. Exum, 163 N.C. 199, 79 S.E. 498 (1913); Morefield v. Harris, 126 N.C. 626, 36 S.E. 125 (1900); Abrams v. Cureton, 74 N.C. 523 (1876). In Morton v. Thornton, supra, where plaintiffs were agents for collection of commissions owed to nonparties, the Court " . . . Th......
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Morefield v. Harris
...not been assigned. Under the present Code (section 177), an assignee for purposes of collection could not maintain the action. Abrams v. Cureton, 74 N. C. 523. In Smith v. Munroe, 23 N. C. 345, Ruffin, C. J., points out that our statute (now, with some amendment, Code, § 1374) was intended ......