Martin v. Hayes
| Decision Date | 31 August 1853 |
| Court | North Carolina Supreme Court |
| Parties | JOHN M. MARTIN v. GEO. W. HAYES. |
An assignment of a note, to enable the assignee to sue thereon, must be made by the payee, and must be for the whole, and not for a part only of the sum mentioned in the note.
THIS was an action of ASSUMPSIT, brought on the defendant's assignment of a note under seal. The following are copies of the note and assignment:--
“Due Newton & Hayes nine hundred and thirty-seven dollars--six hundred and sixty-three dollars and seven cents to be paid to J. M. Martin when called upon, and the balance to be paid to said Newton & Hayes for value received of them. Witness my hand and seal, 5th July, 1851.
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¦(Signed)¦M. FAIN, [SEAL.]” ¦
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On the back of the said note is the following:-- “For value received I assign to John M. Martin six hundred and sixty-seven dollars and seven cents in this note, with the interest on that amount from 5th July, 1851.
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¦(Signed)¦G. W. HAYES.” ¦
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Upon the pleas of general issue and no assignment to plaintiff, the case was tried before his Honor, Judge ELLIS, at Cherokee, on the last Spring Circuit. The plaintiff proved, and read in evidence, the bond and the assignment, and insisted on his right to recover the amount assigned to him. The defendant contended that before the plaintiff could recover there should be proof of a demand and nonpayment by Fain, and notice thereof to the defendant. His Honor instructed the jury that if they believed the testimony, the plaintiff was entitled to recover. There was a verdict for the plaintiff accordingly, and judgment having been rendered in pursuance thereof, the defendant appealed to the Supreme Court.
J. Baxter, for the plaintiff .
Gaither, for the defendant .
In the Court below, the defendant insisted that to fix him with liability, it was necessary for the plaintiff to prove a demand on Fain the obligor, and nonpayment by him. His Honor was of opinion that the defendant was liable without such proof.
We are at a loss to see any ground on which the defendant was liable to pay the amount, even if such demand and nonpayment had been proven. He made no express promise to pay, and we are left to conjecture that his Honor was of opinion that a promise to pay was implied by some principle of the “law Merchant.”
According to the “law Merchant,” which is incorporated into the common law, a bill of exchange may be assigned by endorsement. This was an exception to the common law maxim, “choses in action cannot be assigned,” and was forced upon the Courts as soon as England aspired to be a commercial nation. A consequence of the assignment was to make the endorser liable for...
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Booker v. Everhart
...Court held that a partial assignee of a claim could not enforce his interest without making the assignor a party. See also, Martin v. Hayes, 44 N.C. 423 (1853); Knight v. Wilmington & Manchester R. Co. 46 N.C. 357 (1854); and National Surety Co. v. Board of Education of McDowell County, 15 ......
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Blake v. Weiden
...of the instrument.’ The meaning of that phrase has been examined in many opinions and texts. Some of those authorities (see Martin v. Hayes, 44 N.C. 423; Conover v. Earl, 26 Iowa 167; Byles on Bills (20th ed.), p. 161; Brannan Negotiable Instruments (5th ed.), p. 427) say, or seem to say, t......
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Covlin v. Volochenko
...of a note to enable the assignee to sue thereon must be for the whole and not for a part only of the sum mentioned in the note. Martin v. Hayes, 44 N.C. 423; Lindsay Price, 33 Tex. 280. An assignment of a part of a note does not pass the legal title or rights of action to the assignee. Elle......
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