The contract of insurance in this case was made with two persons jointly. They are described as copartners in the application, which is referred to in the policy, and the property covered by the insurance is stated to belong to them both. It is a case where the form of the contract is joint, and where the legal interest in the subject matter of the contract is vested in two jointly. Upon familiar principles, both the joint contractors should join in bringing an action for a breach of the *82contract, and the omission to join them is a good defence, either in abatement or under the general issue.
The sole ground therefore, on which an action on the policy can be maintained in the name of one of the joint contractors is, that the interest of the other joint contractor was assigned to the present plaintiff, who seeks to recover in this action in his own name only. But the difficulty which the plaintiff has to overcome in order to support this suit is, that an assignee of a chose in action cannot support an action in his own name, but must proceed in the name of the assignor, unless he can show a notice of the assignment to the other party to the contract, and his assent thereto. Wilson v. Hill, 3 Met. 69. Fogg v. Middlesex Mutual Fire Ins. Co. 10 Cush. 345, 346.
In the present case, it is expressly found in the exceptions, that no notice of the assignment of the interest of one of the assured in the policy to the other joint contractor was ever given to the defendants. The agent, Frothingham, was only a special agent to receive applications for insurance, and had no power to bind the defendants by any contract. Hale v. Mechanics’ Mutual Fire Ins. Co. 6 Gray, 169. Kimball v. Howard Fire Ins. Co. 8 Gray, 37.
There was therefore no ground on which the plaintiff could maintain this action in his own name only. The instructions given to the jury therefore, however correct and true as abstract propositions, were wholly inapplicable to the case proved, and the verdict found for the plaintiffs must be set aside as being the result of a mistrial.
Without some other proof of an assent by the defendants to the assignment, the plaintiff can recover only by joining his co-contractor as a plaintiff. Exceptions sustained.