Ashby v. Winston

• Decision Date: 31 January 1864
• Citation: 34 Mo. 311
• Parties: THOMAS T. ASHBY, Defendant in Error, v. GEORGE B. WINSTON, ALEX. P. DORRIS, and WILLIAM KERR, Plaintiffs in Error.
• Court: Missouri Supreme Court

34 Mo. 311

THOMAS T. ASHBY, Defendant in Error,

v.GEORGE B. WINSTON, ALEX. P. DORRIS, and WILLIAM KERR, Plaintiffs in Error.

Supreme Court of Missouri.

January Term, 1864.

Error to Benton Circuit Court.

Ashby held a note of Dorris & Kerr for $743.22; Dorris held the notes of Winston for a larger amount, upon which he brought suit. Subsequently he made a written assignment to Ashby of the suit or of so much of the proceeds realized therefrom as should be sufficient to pay his note to Ashby; of this assignment Winston had notice. Winston compromised the suit with Dorris, who paid part of the money to his attorney, who was also attorney for Charless & Blow, who had a judgment against Dorris. Ashby then sued Dorris, Kerr, and Winston, on the ground that Winston's compromise was in fraud of the assignment of which he had notice. (See Ashby v. Winston, 26 Mo. 210.)

The court, at the instance of the respondent, instructed the jury as follows:

1. If the jury are satisfied from the evidence that Dorris & Kerr are indebted to plaintiff on the note in evidence as executed by them to plaintiff, and that Dorris & Kerr were insolvent, and the plaintiff for the sole purpose of securing the payment of said debt took the assignment read in evidence, and that Winston before the compromise had notice of such assignment, then Winston was bound in equity to treat plaintiff as the real owner so as to control the suit, and so as to take the benefit of such judgment as might have been obtained to the amount of Dorris & Kerr's indebtedness on their note to him, and Winston had no right to compromise the suit without the consent or authority of plaintiff; and though Dorris and Winston compromised their suit, and though Winston paid to Dorris the amount agreed upon in the compromise, yet the jury will find for the plaintiff against Winston to the amount really due Dorris by Winston, if anything, on said notes, at the time of the assignment, to the extent of the indebtedness of Dorris & Kerr to plaintiff.

2. And if Winston before such assignment represented to plaintiff that there was sufficient due on said note to satisfy plaintiff's claim on Dorris & Kerr, and advised plaintiff to get such assignment for the sole purpose of securing said demand, and that in pursuance of such advice and representations plaintiff obtained said assignment with the knowledge and consent and advice of Winston, and that Winston afterwards, without the knowledge or authority of plaintiff, compromised the suit in fraud of plaintiff's rights, then they should find for the plaintiff against Winston to the amount of the indebtedness of Dorris & Kerr on their said note, notwithstanding any such failure or consideration.

3. In giving Winston notice of the alleged assignment, it was not necessary for Ashby to give him a copy of it, or read it to him: it was sufficient for him, or any other person for him, Ashby, to notify him verbally that the assignment had been made and he held it.

The defendant then asked the court to give the following instructions:

1. If the jury believe from the evidence that the consideration of the notes upon which Dorris sued Winston failed, as stated in Winston's answer, they will find for defendant, unless he induced Ashby to take the assignment, in which case the first defence founded upon a failure of consideration relied upon by defendant cannot avail him.

2. Although Winston may have had notice of the assignment, or may have induced Ashby to take it, and although Ashby may have had the right under the assignment to control the suit and to take the proceeds of the judgment when obtained to the extent of satisfying his debt, as the assignment authorized M. M. Parsons, Dorris' attorney in said suit, whenever said money should be collected of said Winston, to pay over the same to said Ashby; if the jury are satisfied from the evidence that the compromise was made with Dorris, and enough money paid to him to satisfy Ashby's debt by Parsons' advice, the jury must find for defendant.

3. Although Winston may have had notice of the assignment, or may have induced Ashby to take it; and although Ashby may have had the right under the assignment to control the suit, and to take the proceeds of the judgment, when obtained, to the extent of satisfying his debt, yet as the assignment itself authorized M. M. Parsons, Dorris' attorney, whenever said money should be collected of Winston, to pay over the same to Ashby, if Parsons, with knowledge of the assignment, collected of Winston $601.00, or Dorris did it by his advice and paid it over to him, it was Ashby's money, and the jury must deduct such amount from the amount claimed by Ashby from Winston in this suit.

4. If the jury believe from evidence that Winston compromised with Dorris by the advice of M. M. Parsons, and that Parsons was Ashby's attorney, and authorized as such to act for Ashby in receiving the money; in other words, if the jury believe the compromise was made by authority given by Ashby, they must find for the defendant.

The court gave the first instruction asked by defendant, and refused the second, third, and fourth; to which refusal of the court defendant excepted.

Ewing, Smith and Freeman, for defendant in error.

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