
    Jabez Mowry versus Samuel Todd.
    An action may be maintained on a written contract, not in its nature negotiable in, the name of the party to whom it has been delivered over, without the name of the assignor, but with an intent to transfer it, the party bound having recognized the transfer and promised to pay the contents to the holder.
    Assumpsit on a promissory note and an agreement, copies of both which came up in the case.
    The note was made by said Todd to one Samuel Fisher or order, dated June 8th, 1813, for fifty dollars on demand with interest, and indorsed by Fisher m blank. The agreement was as follows, namely ; “ Portland, June 8th, 1813. This may certify, that I, Samuel Todd, do agree to pay my proportional part of the ransom given in St. John's, December 9th, 1812, for the schooner Ospray, by Captain Samuel Fisher, it being two hundred and sixty-one dollars and sixty-one cents, with interest after this date, when it appears that the said ransom is to be paid, as witness my hand. Samuel Todd.” On the back of this agreement * was written [*282] the following, namely; “For value received, I hereby transfer all my right and interest in the within promise, being myself solely interested, to Jabez Mowry.”
    
    At the trial, which was had upon the general issue, before Thatcher, J., at the last October term in this county, the signing of the said note, and its indorsement to the plaintiff, were admitted, as was also the signing of the said agreement.
    The plaintiff read in evidence the deposition of James Savage, Esq., of Boston, testifying, that some time in July or August, 1813, having in his possession, as attorney to the plaintiff, the note and agreement declared on, the witness gave notice to the defendant, then in Boston, that the same were left with him for collection, the one being indorsed by said Fisher, and the other assigned by Fisher, as the witness supposed, at the same time the first was indorsed, the witness having drawn the form of an assignment on the back of the agreement, and Fisher having agreed to execute it ; that it was understood by all parties that the plaintiff paid the ransom money for the schooner Ospray, having for the owners’ benefit made himself liable, with the said Fisher and Dr. J. M. Baxter, for the sum mentioned in a writing attached to the deposition, and hereafter described; that the defendant then promised to pay the said two notes, or to give the witness security before he should leave Boston, which he failed of doing ; that the defendant knew and acknowledged that the plaintiff had paid the said money, and made no objection to the portion for which he was liable as part-owner of the schooner ; that the de fendant observed to the witness that Fisher owed him on another account, and that he would obtain from him the balance before leaving Boston, to enable him to make up the money for the plaintiff; wishing the witness to deduct what Fisher owed him, but, on the witness objecting to that course, he undertook to satisfy the full amount of the plaintiff’s claim.
    The paper annexed to the said deposition was signed by one Thomas Millidge, jun., as agent to the schooner Bream, [* 283] * certifying that he had received a note of hand, signed by said Fisher and Baxter, payable in three months from the date, for £262 10s., current money of New Brunswick, which sum was to be paid by the said Millidge, to Lieutenant C. Hare, of His Majesty’s schooner Bream, being the sum charged by him for the ransom of the schooner Ospray and cargo.
    The defendant produced a note signed by said Fisher, dated October 3d, 1812, for $ 150.89, payable to the defendant, on which $. 100 was indorsed as paid on the Sth of June, 1813 ; and also an order drawn by Fisher on J. M’Lellan, for $ 247, payable to the defendant, dated on the said 8th of June, which was dishonored by M’Lellan, and which Fisher acknowledged to be good against himself.
    A verdict was taken for the plaintiff by consent, subject to the opinion of the Court on the foregoing evidence. If the Court should think the action maintained as to both the plaintiff’s demands or causes of action, judgment was to be entered on the verdict; otherwise, the verdict was to be amended as to the damages, and to stand only for the principal and interest due upon the note first described.
    The cause was argued by Longfellow and Storer, for the plaintiff, and by Mellen and Potter, for the defendant;
    and, being continued nisi for advisement, judgment was pronounced at the following September term in Berkshire.
    
   Parker, C. J.

If the principal contract, which is declared upon, was duly assigned to the plaintiff, so as to give him the equitable interest and entitle him to an action in the name of Fisher, we have little doubt that an express promise, made to him by the de* fendant, gives him a right of action in his own name upon that promise.

The only question of difficulty is, whether the contract or undertaking of Todd to Fisher is duly assigned to the plaintiff. It appears clearly to have been intended to be assigned ; a valuable consideration was paid, and the written evidence of the contract was delivered over to the plaintiff. But Fisher had not signed his name on tue back, although words of transfer were written for the purpose of having his * signature, and the omission was [*284] accidental and not by design.

Whatever may be the effect of handing over a written contract to a party, to whom it is intended to be transferred, without a recognition of the transfer by the person bound by the contract, and a promise to pay the contents to the holder ; we are satisfied, that, with such recognition and promise, the assignment is sufficient without the name of the assignor. It amounts to the substitution of one creditor for another, by the consent of the two creditors and the debtor ; and an action may be maintained by such assignee in his own name, founded on the assignment and the express promise of the debtor to pay him. Without such promise of the debtor, the assignment, without writing, may be good, to some purposes, between the assignor and assignee ; but it would be a question between those two only. The action must, in such case, be brought in the name of the assignor ; and if he who holds the contract obtains the money, he will be enabled to keep it, if he can show that he has an equitable right to it, notwithstanding there may have been no assignment of it in writing. A question may also sometimes arise between the assignee and a creditor of the assignor, who may summon the debtor as trustee ; but in the present case no such difficulty has occurred.

With respect to the right of the defendant to set off any demand he has against Fisher, we think his engagement to pay the plaintiff effectually precludes him. When notified of the assignment, if he had stated his counter claims, and promised to pay only such balance as might be due, his debt would have been protected ; or, if he had not promised at all, the action must have been brought by Fisher, and he would have had a right to set off, according to the statute, if legally and equitable entitled. But his promise to pay, especially after signifying a wish to deduct what was due to him from Fisher, amounts to a relinquishment of his right, or an acknowledgment that he had none. And, considering the favorable light in which the plaintiff stands, as having advanced money essentially for the ben[*285] efit of the defendant, it is * not difficult to imagine that he was ready to postpone any claim of his own, for the purpose of indemnifying the plaintff.

We are therefore of opinion that the verdict is right, and judgment must be entered accordingly. 
      
      
        Fenner vs Mears, 2 W. Black. 1269. —Israel vs. Douglas & al., 1 H. Black. 259. — Clarke vs. Adair, 4 D. & E. 343.
     
      
      
        Jones vs. Witter, 13 Mass Rep. 302. — Drum vs. Snell, 15 Mass Rep 481. — Coolidge vs. Ruggles, 15 Mass. Rep. 387. — Stone vs. Swift, 4 Pick. 389.
     
      
      
         Goodwin vs. Cunningham, ante, 193. —Hatch vs. Greene, ante, 195.—Jenkins vs Brewster, 14 Mass. Rep. 291.
     
      
       Where A was indebted to B. for brokerage, and B. was indebted to C. for money lent, and B. gave an order to A. to pay C. the sum due from A. to B as a security, on which C. lent B. a further sum, and the order was accepted by A , it was held, that, on A/s refusal to comply with the order, C. might maintain an action for money had and received against him. Israel vs. Douglass, 1 H. Bl. 239. And see Wilson vs. Coupland, 5 B. & A. 228. But, according to the most recent decisions, the agreement must be such that the debt due from B'. to C. is thereby extinguished. Caxon vs. Chardley, 3 B. & C. 591. — Wharton vs. Walker. 4 B. & C. 165. — Spratt vs Hobhouse, 4 Bing. 178. — Hannins vs. Rothschild, ib. 315. Where A , being indebted to B., gave him an order upon C., his, A.’s, tenant, to pay the amount out of the next rent that would become due, and B. sent the order to C., but had not any communication with him upon the subject, and at the next, rent-day C. produced the order to A. and promised to pay the amount to B., and, upon receiving the difference between that and the whole rent, A. gave a receipt for the whole; it was held that B. could not recover the amount of the order from C., either in an action for money had and received, or upon an account stated. Wharton vs Walker, ub. sup. — Robertson vs. Fontleroy, 8 Moore, 10. — Vide Hodgson vs. Anderson. 3 B. & C. 855. — Fisher vs. Miller, 1 Bingh. 150. Where there is a defined and ascertained debt due from A. to B , and a debt, to the same or a larger amount, due from C. to A., and the three agree that C. shall be B’s debtor instead of A., and C. promises to pay B ; in an action by the latter against C., it is incumbent on him to show, that, at the time when C. promised to pay B., there was an ascertained debt due from A. to B. Fairlie vs Dowton, 8 B. & C. 395. — Browning vs. Stalland., 5 Taunt. 450. — Vide Tucker vs. Welsh, 17 Mass Rep. 160.— Crocker et ux vs. Whitney, 10 Mass. Rep. 317, and note to 3d ed - Usher vs. De Wolfe, 13 Mass. Rep. 298.— Coolidge vs Ruggles, 15 Mass. Rep. 387.
     