White v. Robbins

• Decision Date: 26 March 1875
• Citation: 21 Minn. 370
• Parties: JOHN W. WHITE, Assignee, etc. <I>vs.</I> DANIEL M. ROBBINS.
• Court: Minnesota Supreme Court

21 Minn. 370

JOHN W. WHITE, Assignee, etc.vs.

DANIEL M. ROBBINS.

Supreme Court of Minnesota.

March 26, 1875.

Complaint upon a promissory note made by defendant to plaintiff as assignee of McLeary & Co., upon a sale of all the personal property of that firm. Answer, that certain fire insurance policies on the goods sold were included in the sale; that these policies were of the value of $150; that afterwards, and before the insurance company which issued the policies knew of the sale, the plaintiff, with intent to defraud the defendant, surrendered the policies to the company, and received the return premiums; in consequence of which, the defendant was obliged to effect insurance on the goods sold him, at a cost of $150, and was damaged to that amount, which sum he prays may be allowed him as an offset and counterclaim to plaintiff's demand. At the trial in the court of common pleas for Ramsey county, before Hall, J., the evidence offered by defendant, in support of his answer, was excluded, on plaintiff's objection, defendant excepting. The court directed a verdict for plaintiff, for the amount claimed in the complaint; a new trial was refused, and defendant appealed.

Uri L. Lamprey, for appellant.

John W. White, for respondent.

BERRY J.

The firm of McLeary & Co. made an assignment of "all their property, assets and effects" to the plaintiff, for the benefit of creditors. On June 30, 1873, plaintiff sold to defendant "all the personal property, of any nature or kind whatever, (except books and book accounts,) which belonged to said firm." At the time of the assignment to plaintiff, McLeary & Co. held two fire policies on the whole or a part of the goods sold to defendant, each issued for a year, and dated March 1, 1873, and therefore having eight months to run at the time of the plaintiff's sale to defendant. The question in this case is whether the right and interest of McLeary & Co., and of the plaintiff as their assignee, in and to the policies, passed to the defendant under the sale above mentioned.

Whether the policies were made assignable or not by their own terms, either with or without the consent of the insurance company, does not appear: it is stated only that they were "issued to McLeary & Co." Admitting, as is perhaps inferable from the undenied allegations of the answer, that the policies were so assigned to the plaintiff as to pass McLeary & Co.'s interest in the same to him as their representative, taking and holding the same...