Pinkham v. Benton

When an agent with whom a contract is made has a beneficial interest in its performance, or a special property in its subject-matter, he may maintain an action upon such contract in his own name. The memorandum of a witness becomes evidence only when he verifies it as having been true when made, has since forgotten the transaction, and is not able to recall it after examining the memorandum so as to state it from memory.

Assumpsit. The referee finds due the plaintiff on the defendant’s note a balance of $50.34, and also the sum of $19.74 on a certain order. The latter finding was subject to exception by the defendant. The plaintiff also claims to recover the sum of $199.61, with interest from April 8, 1873, upon the following facts: In November, 1872, the plaintiff was attorney for one Boyce, who recovered a judgment against one Sumner, on which execution issued January 10, 1873, for damages and costs, amounting to $200.24. The defendant, as a referee, assessed the damages in that action, and offered to buy the execution or judgment, saying he would pay within $5 of the full amount. The plaintiff told the defendant he did not own the whole execution; that Boyce had an interest in it, and he would write Boyce, advising him to let the defendant have the execution at his offer. The plaintiff wrote Boyce, received a reply dated January 12, 1873, and a few days after informed the defendant that he had received a letter from Boyce authorizing him to sell the execution, and that he (defendant) could have it at his offer. The defendant said he would send for the execution when he wanted it, and April 3, 1873, Stalbird, a deputy sheriff, called on the plaintiff, saying the defendant had sent him for the execution against Sumner; and the plaintiff, adding the interest to that date, making $204.61, and deducting $5, charged the defendant $199.61 on his book of accounts for the execution, and délivered it to Stalbird. The referee finds that the defendant purchased the execution, and that the plaintiff is entitled to recover the sum of $199.61, with interest from April 3, 1873, if he can maintain this action in his own name for the recovery of this item. The defendant contends that the execution belonged to Boyce, and that this action cannot be maintained by the plaintiff. Previous to the time of the sale of the execution by the plaintiff to the defendant, Boyce had put into the plaintiff’s hands for collection the claim against Sumner and other claims, and the plaintiff had been summoned as trustee in suits against Boyce, and, relying for security upon the demands in his hands for collection, had been charged as trustee in those suits, and had paid the judgments, so that at the time of the sale of the execution Boyce was indebted to the plaintiff for money paid and advanced and for services as attorney in the sum of about $150. The execution was never in fact sold or assigned by Boyce to the plaintiff, and the plaintiff had no title to it at the time of the sale to the defendant, unless the law gave him a lien upon it for money paid and services rendered as attorney for Boyce. The defendant claims that the contract for the sale and purchase of the execution is within the statute of frauds. The plaintiff offered in evidence his book containing the charge of the Sumner execution to the defendant, as follows: “April 3, 1873, J. Benton, Dr., To execution, Boyce v. Sumner, for $183.78 ; costs, $16.46 & .17; interest, 4.20 ; amounts to $204.61. By discount, $5.” The defendant objected to the book as evidence, and the referee received it, subject to exception.