
    David N. Burrows vs. Thomas B. Glover & another.
    The defendants signed the following instrument: u We sell to J. S.” certain personal property for a certain sum; “ the conditions of this sale are such that, if we pay to J. S. the above named sum, this instrument is null and void, otherwise of full force and effect.” J. S. assigned this instrument to the plaintiff for a valuable consideration, and the defendants assented to the assignment, and promised to pay the plaintiff the amount named in the instrument. Seldy that the plaintiff could maintain an action in his own name against the defendants for said amount; and that it was no defence that, since the defendants’ assent to the assignment, they had been summoned as trustees in a suit against J. S.
    Contract against Thomas B. Glover and George W. Wilson on the following instrument, dated February 10, 1869, signed by them, and assigned in writing to the plaintiff, under date of February 20, 1869, by the Charles W. Stinson therein named: “We, the undersigned, do sell to Charles W. Stinson the following named property, to wit, the same lot of blacksmith’s tools we bought of him; also, all the blacksmith’s tools now owned by us in our respective shops; for the sum of $200, to be paid on or before May 1, 1869. Nevertheless, the conditions of this sale are such that, if the undersigned pay to said Stinson the above named sum, this instrument is null and void, otherwise of full force and effect.”
    At the trial in the superior court, before Scudder, J., the plaintiff introduced evidence tending to show that the assignment was made on the day of its date, and for a valuable consideration; that shortly afterwards he informed the defendants thereof, and they assented thereto and promised to pay him the amount named therein; and that on May 1,1869, he demanded of the defendants the money or the tools, and they refused to let him have either.
    The judge instructed the jury “that if the instrument was executed by the defendants, and was assigned by Stinson to the plaintiff for a valuable consideration, and if, upon being informed of the assignment, the defendants assented thereto and promised the plaintiff to pay him the amount named therein, this would be sufficient to enable the plaintiff to maintain this action in his own name.”
    
      It further appeared that some time after the assignment, notice and promise aforesaid, and before May 1,1869, the defendants were summoned as trustees in suits brought against Stinson by his creditors, all of which were still pending; and the defendants asked the judge to rule that the assignment would not be valid as against the attaching creditors, unless it had been recorded, and that therefore this action could not be maintained; but he declined so to rule.
    The jury returned a verdict for the plaintiff, and the defendants alleged exceptions.
    
      C. A. F. Swan, for the defendants.
    
      M. B. Qaverly $ D. B. Grove, for the plaintiff.
   Ames, J.

The written instrument signed „by the defendants, although very inartificially drawn, contemplates the payment by them of the sum of $200 to Stinson. It does not in terms purport to be a promise to pay that sum to him, but it provides that on such payment their conveyance to him of certain tools is to become null and void. Stinson assigned this instrument to the plaintiff, and the jury have found that for this assignment there was a valuable consideration. The jury were instructed that if the defendants were notified of the assignment, assented to it, and promised the plaintiff to pay him the amount named in the instrument, he would be entitled to maintain this action in his own name; and this instruction was correct. It is not necessary to inquire whether the instrument should be considered as a mortgage of the tools, or not. It designated a fund payable to Stinson, which by his direction and by the defendants’ express promise became payable directly to the plaintiff. Clark v. Parker, 4 Cush. 361. Dennis v. Twitchell, 10 Met. 180. Crocker v. Whitney, 10 Mass. 316. Grant v. Wood, 12 Gray, 220.

After the assignment and their express promise to pay the plaintiff, the defendants had ceased to be indebted to Stinson, ana could not be held chargeable in the trustee processes against them. Mowry v Todd, 12 Mass. 281. '.Exceptions overruled.  