[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 230 The appellant insists that the assignment from Cook, Clark and Carey to the plaintiff, conveyed no title upon *Page 231 which this suit could be brought. This point is based upon the evidence given by Mr. Cook, when he testifies "Allen paid me nothing, and I agreed with him that I would take care of the case, and if he got beat it should not trouble or cost him anything."
I am of the opinion, that the assignment is sufficient to sustain this action.
The Code abolishes the distinction between actions at law and suits in equity, and between the forms of such actions. (Section 69.) It is also provided, in section 111, that every action must be prosecuted in the name of the real party in interest, except as otherwise provided in section 113. The latter section provides that an executor, administrator, trustee of an express trust, may sue in his own name. These provisions are intended to abolish the common-law rule, which prohibited an action at law otherwise than in the name of the original obligee or covenantee, although he had transferred all his interest in the bond or covenant to another. It accomplishes fully that object, although others than the assignee may have an ultimate beneficial interest in the recovery In a case like the present, the whole title passes to the assignee, and he is legally the real party in interest, although others may have a claim upon him for a portion of the proceeds. The specific claim, and all of it belongs to him. Even if he be liable to another as a debtor upon his contract for the collection he may thus make, it does not alter the case. The title to the specific claim is his. (Durgin v. Ireland, 4 Kernan, 322; Williams v. Brown, 2 Keyes, 486, and case cited;Paddon v. Williams, 1 Robt. R., 340; S.C., 2 Ab. R., N.S., 88.)
It appeared upon the trial that the defendant was employed by Cook, Clark Cary to settle and arrange their claim, with his own, against a western railroad company. He did arrange all the claims, taking certain coupon bonds, which have been delivered to the claimants, and taking also three promissory notes. One of these notes, for $1,404, was sold by the defendant, before its maturity, for $500. The referee finds that this note was good, that it would have been paid at *Page 232 its maturity, and that the defendant is responsible, as if he had collected its full amount. He gave judgment for the amount in the present suit. The defendant objects to this recovery, on the ground: 1. That the transfer to the plaintiff does not embrace it; and, 2. That the complaint is not sufficient to justify its recovery.
The authority of the defendant was "to collect, settle or arrange their claims" against the railroad company. This was full authority for arranging the claim in the defendant's discretion. It justified him in taking notes on time for a portion of the amount. When he received the notes, they, as well as the coupon bonds, were the property of the principals, to three-fourths of their amount, the defendant being himself the owner of the one-fourth. The defendant was not an agent to dispose of what he received in settlement. His authority was simply to settle the claim. The securities, when taken, as to three-fourths thereof, belonged to Clark, Cook Cary, fully, exclusively and free from any agency of the defendant. It is, therefore, the case simply of one having in his hands a collectible promissory note made by A, which is the property of B, and which the holder, without the authority of B, sells for less than its face. It is quite clear that this seller is liable to B for the full amount of the note. (Story on Agency, §§ 192, 217, 221; Par. Mer. Law, 148, 151.)
Or if taken by the purchaser, with knowledge of the facts, the specific property may be reclaimed from him. (Story on Agency, §§ 224, 226, 228, 229.)
As between the principal and agent, the alleged sale is entirely void. It is as if it had never been attempted. He may be deemed to hold the property still in his hands, and be made chargeable with its value. The owner may recover from the agent, in such case, the specific goods, by an appropriate action. If the property be stock or merchandise, which has advanced in value, he may recover from the agent its enhanced value. (Par. M. Law, *141, 148, *144; Story on Agency, § 221, and cases cited;Allen v. Suydam, 20 Wend., 321.) *Page 233
As between the principal and the agent, the latter may be deemed still to have the notes in his possession. They may in theory of law be specifically reclaimed, or the principals may recover their value in an action for money had and received. (Beardsly v. Root, 11 John. R., 464; Ainslie v. Wilson, 7 Cowen, 662; Denton v. Livingston, 9 John. R., 96.)
The transfer, therefore, to the plaintiff, "of the said notes or the avails thereof," was appropriate in its terms to convey the present claim to the plaintiff. A transfer of the principal debt carries all collaterals and contingencies connected with it. The transfer of a debt carries a mortgage or judgment which is held as collateral to it. The transfer of a note or draft, invalid by reason of a statutory prohibition, carries with it a claim for money had and received, arising out of the transaction for which the note or draft was given. (The Ontario Bank v.The Oneida Bank, 21 N.Y.R., 490; Tracy v. Talmage, 14 id., 192; Jackson v. Blodgett, 5 Cow., 202; Patten v. Hall, 9 Cow., 747, Langdon v. Buel, 9 Wend., 80.)
The same considerations are in point to show that the complaint is sufficient, either in its special counts or its general ones, to sustain the recovery.
The judgment should be affirmed with costs.