Spratt v. McKinney
| Decision Date | 01 December 1809 |
| Citation | 4 Ky. 595 |
| Parties | Spratt v. M'Kinney. |
| Court | Kentucky Court of Appeals |
Absence of the debtor from the circuit is not sufficient to entitle the assignee to recourse against the assignor.
Diligence by suit cannot be dispensed with by averring the debtor was insolvent.
The liability of the assignor to the assignee is to refund the consideration received for the assignment.
Where the promise or agreem't is not for money, but for doing some collateral act, indebitatus assumpsit will not lie, but special assumpsit.
THIS was an action of indebitatus assumpsit. The declaration contains two counts; the one is by the assignee against the assignor of a covenant to pay a horse to be worth one hundred dollars, to have been delivered on a certain day in Standford. After setting forth the covenant and assignment, and notice to the covenantor of such assignment the plaintiff avers the failure of the covenantor to pay the horse at the time and place appointed; that he had made diligent search in the circuit for Jameson, the obligor, but has not been able to find him; and that he was, at the time the horse became payable, insolvent and unable to pay whereof the assignor, afterward, on____, etc. had notice whereby the assignor became liable, etc.; and being so liable, in consideration thereof, assumed to pay to the plaintiff, when requested, one hundred dollars, " " " " the amount of said deed."
The second count is upon an indebitatus assumpsit for so much money had and received to the use of the plaintiff. Upon general demurrer to both counts, the Court below gave judgment against the plaintiff.
To the first count there are several insuperable objections. The assignment as stated is not by specialty, but by simple contract, and yet no consideration for assignment is laid 2dly. The diligence used to find the covenantor in the circuit alone, is insufficient to excuse the failure to bring suit on the covenant; nor can the averment of insolvency excuse the want of diligence by suit, on an instrument not negotiable by the lex mercatoria, but assignable only under the statute. The assignor of such a paper is only responsible under the contract implied by law upon a failure to make the money after due diligence used in a suit by the assignee against the maker; so is the law settled by the decisions in this State, to which we had reference in the cases of Noland v. Woods and Smallwood v. Woods, [(a)]. It is not pretended, by any averment, that the covenantor was out of the commonwealth at the date of the assignment, and so remained until after the day of payment; the contrary is rather asserted by the averment that the covenantor had notice of the assignment. The failure to sue not being excused, the liability of the assignor did not attach, and therefore the promise laid upon the consideration of his liability is not upholden. But the liability of the assignor is charged to be for payment of " the amount of the said deed," not the amount of the consideration which passed to the assignor from the assignee for the assignment, which consideration (as before observed) is no where stated. From the liability to pay the amount of the deed as deduced, another legal conclusion is drawn by the plaintiff, viz. an indebitatus assumpsit, on the part...
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