Anderson v. Van Alen

Thompson, Ch. J.

delivered the opinion of the court. The-plaintiffs having made an .assignment of the demand on. which / the, present suit is founded,. : for the - benefit of their creditors,they are only nominal parties- upon 'the record, a-nd the real-question is between their creditors and the defendant; • and the-right of set-off will depend upon, the fact how far the' defendant; is chargeable with, notice of the assignment. It is a well-settled principle-, that courts of law will notice the assignment of a 'oho$& *345 in action, and protect the interest of a bestuy que trust against every person who has notice of the trust. And it seems, also, to be pretty well settled, that actual notice is not necessary. If a party acts in the face of facts and circumstances which were sufficient to put him upon inquiry, he acts contrary to good faith, and at his peril. These are principles fully recognised by this court in the c&se of Johnson v. Bloodgood, ( 1 Johns. Cas. 51 .) and if applied to the case before us, will very satisfactorily show that the set-off cannot be allowed.

I lay out of view the first assignment to Gourlay, and notice only that made to Bingham and others, on the 7th day of October, 1814. The note offered as a set-off, bears date the 9th day of April, 1814, payable six months after date, and was not transferred to the defendant until the 20th of November in the same, year, which was some time after it fell due. This has always been considered a circumstance of suspicion, and enough to put the endorsee upon inquiry. There is no direct and positive proof that this note was purchased for the express purpose of setting it off against the present demand; but the facts in the case afford an almost irresistible conclusion that such was the object. The defendant, as appears by his own Confessions, was, some time before he purchased the note, fully apprized of the failure of the plaintiffs; was present at the sale of their goods by the sheriff; and it is hardly conceivable, that, with a knowledge of this fact, he would have purchased the note in question, unless it had been with some such view. About the middle of October, notice of the assignment was given in two of the public newspapers printed in the city of Albany, and continued for three months; and about the 2.0th of the same month, a letter was written to the defendant, giving him notice of the assignment. This letter, it is true, did not come to the defendant’s hands until some time in December or January; but the very circumstance of its lying in the post office, in the very town where he resided, from some time in October, bears strongly the appearance that there was some suspicion as to its contents, and that" the notice ifi the newspapers had been seen. These are strong grounds for believing a speculation was intended, to the prejudice of the other creditors who were interested in the assignment, and are sufficient to áfford a well-grounded belief, if not an irresistible convictiop, that the defendant had notice *346 of the assignment when he purchased the note. The opinion of the court, therefore, is, that the set-off ought not to be allowed^ anc[ t]iat vie plaintiffs have judgment for 553 dollars and 92 cents. '

Judgment for the plaintiffs..