Robinson v. Wilkinson

• Decision Date: 29 January 1878
• Citation: 38 Mich. 299
• Court: Michigan Supreme Court
• Parties: Thomas Robinson v. Susannah Wilkinson

38 Mich. 299

Thomas Robinson v. Susannah Wilkinson

Supreme Court of Michigan

January 29, 1878

Submitted January 23, 1878

Error to Superior Court of Detroit.

Assumpsit. Defendant brings error.

Judgment for the plaintiff, and the judgment reversed, with costs, and a new trial ordered.

George Gartner for plaintiff in error. Where a note is transferable in the first instance only by endorsement, one who claims a beneficial interest in it should sue on it in the payee's name. Pease v. Hirst, 10 B. & C., 122; Waters v. Millar, 1 Dal. 394; Davis v Lane, 8 N. H., 224; Hedges v. Sealy, 9 Barb 218; Amherst Academy v. Cowls, 6 Pick. 427; Jones v. Witter, 13 Mass. 304; 2 Pars. N. & B 46 n b; 3 Kent's Com., 78 n d; Chitty on Bills, 226 a; the statutory provision that an assignee may recover in his own name (Comp. L., § 5775) does not apply to paper negotiable under previous laws, Redmond v. Stansbury, 24 Mich. 447; Wilcox v. Sweet, id., 355; Waldron v. Harring, 28 Mich. 493.

Moore, Canfield & Warner for defendant in error.

OPINION

Cooley, J.

Wilkinson brought suit in the Superior Court of Detroit upon a note for nine hundred dollars, made by Robinson, and payable to the order of James N. R. Wilkinson. The note was not endorsed, and the plaintiff claimed a right to recover upon it by showing a verbal assignment of it by the payee to herself for value.

It is not pretended that such a suit could have been maintained at the common law, but reliance is placed upon the statute (Comp. L., § 5775), which provides that "the assignee of any bond, note or other chose in action, not negotiable under existing laws, which has been or may be hereafter assigned, may sue and recover the same in his own name," etc. The view of this statute taken by the plaintiff is, that it is intended to confer upon assignees of choses in action the right to maintain suits in their own name in all cases; that while a note in the form of the one before the court is in a certain sense negotiable, yet that it is not fully and for all purposes such until after endorsement by the payee, and is therefore within the intent of this statute and must be considered not negotiable until it is put in position to pass from hand to hand by mere delivery. And it is said with some force there could be no reason for leaving this particular class of paper subject to the common-law rule which required suit to be brought in the name of the payee, when on all other contracts the assignee is permitted to sue in his own name.

The question, however, is one of...