Cook v. Arthur, 33 N.C. 407, 11 Ired. 407 (1850)

Dec. 1850 · Supreme Court of North Carolina

33 N.C. 407, 11 Ired. 407

COOK AND TAYLOR vs. JOHN A. ARTHUR.

The assignment of a covenant foy the delivery of staves does not, at law transfer the interest in the covenant, \

Where in a suit by A. and B., copartners, against C , he pleaded, that in his garnishment on.an attachment against A., one of the present plaintiffs, ho had admitted that he owed A. the sum for which he is now sued, and ha had paid the judgment rendered against him on the garnishment, Held, that this plea did not avail him, for he had confessed a debt due to A. alone, being different from that to A. and B. now sued- on.

The effects of a firm are not subject to attachment for the separate debt oft one of the partners.

The case of Jarvis v. Hyer, 4 Dev. 367, cited, and approved,.

Appeal from the Superior Court of Law of Beaufort;. County, at the Spring Term 185.0,. his. Honor Judge Bai-* ley presiding.

The action was brought in May L84S, and is covenant.» on an agreement under seal,'dated J.une 7.th, 1S45, where?* by the defendant obliged himself to deliver in Beaufort ■ County, 5.0,000 red oak hogshead staves, on. or before the. 1st of December 1845, to. the plaintiffs, Cooke ds, Taylor - who were partners, and merchants in New York. The • defendant pleaded covenants performed, and a foreign at- - tachment in the Superior Court of Beaufort, commenced • on the 14th of April 1S46, by Yannostrick & CogdelV against the estate of John Moore Taylor, one of the pre- • sent plaintiffs, on the bill of exchange for $>1100, in which ■ the defendant was summoned as a garnishee, and upon - his garnishment, in April 1846, confessed (amongst other • things) that in June 1845, he gave to said Taylor his ob?. ■ ligation to deliver to him 50,000 red oak hogshead staves, and stated that he had delivered 26,713 of them, and that the remaining 23,227 had not been delivered, but remained due to the said Taylor; and that, before the present suit was brought, judgment w,as rendered in the'attachment against Taylor, and the value of the 23,227 staves was condemned in the hands of the defendant, and by him paid in part satisfaction of the recovery against Taylor.

On the trial, the defendant gave evidence, that, in a few days after the execution of the covenant, Taylor, in the name of Cook and Taylor, made an endorsement thereon in writing in these words, “Deliver the within to Messrs. Freeman & Houston f but the witness stated further, that Freeman and Houston had no interest in the trails* action, and that the order was given to them to enable them to receive the staves for Cook & Taylor, and that, under it, they did receive nearly 27000 between December 1845, and May 1846, for them. The defendant also gave in evidence the record of the attachment pleaded by him; and the garnishment and judgments therein appeared to be as pleaded. And thereupon the defendant moved the Court to instruct the jury, that the plaintiff '’could not recover; first, because they had extinguished their right by the transfer to Freeman and Houston ; and, secondly, because the proceedings in the attachment were a bar to this action. The Court refused to give either instruction, and told the jury the plaintiffs were entitled to damages to the value of the staves not delivered.— The plaintiff had a verdict and judgment, and the defendant appealed.

No counsel for the plaintiffs.

Donnell and Rodman, for the defendant.

Ruffin, C. J.

The judgment must be affirmed. The covenant was not negotiable, and the assignment enr’-i have no effect on the legal right to sue on it, if it had been so intended. But there was no such intention.— The purpose was merely to make Freeman and Houston, the agents of Cook and Taylor, so that they might accept the staves on behalf of the owners. Nor, does the attachment help the defendant. The garnishment stated an in-' debtedness to Taylor, the sole defendant in the attachment,'on an obligation to deliver staves to Taylor — being a different instrument from that to Cook & Taylor, now sued on. The difference is not formal merely, but essential to the rights of the parties, as the liability of the garnishee depended on it; since the effects of a firm are not subject to attachment for the separate debt of one of the parties. Jarvis v. Hyer, 4 Dev. 367.

P¿r Curiam. Judgment affirmed.