Everit v. Strong

By the Court, Cowen, J.

The account was due to the firm of Strong & Tolley, and was assigned by Strong alone. No doubt one of several partners has power to assign a demand due to the firm. He has power to sell any of the effects belonging to the partnership. He may negotiate its paper by endorsement or otherwise. The same principle which gives him such authority extends it to the equitable assignment of a chose in action. That a partner superadds a seal to an assignment will not vitiate it, any more than it would a sale of goods made by him under his hand and seal. (Anderson v. Tompkins, 1 Brockenbr. C. C. Rep. 456, 462,464.)

Whether the assignment to the defendants was bona fide or not, was a question of fact, in the decision of which the referee was clearly correct. It is insisted that a man is not a bona fide purchaser till he has actually paid the consideration. That is sometimes so; (Jewett v. Palmer, 7 John. Ch. Rep. 65 ;) but not in the sense of the statute of set-off. An obligation to pay the consideration comes to the same thing. If a man buy an account or note, with intent to set it off, giving his own note, he must pay it, though he fail to effect the intended set-off. He must run his risk of collecting the assigned demand by action.

The referee was right; and the motion to set aside his report is denied.

Motion denied.