
    Ramon Salas, assignee, vs. Cay, Mortimer & Co.
    
      Evidence — Witness —Agent —Assignee—Assumpsit — Pleading — Contract—Assignment for Benefit of Creditors.
    
    A witness having no personal interest, but only an interest as agent for others, is, it seems, competent.
    Where there is an assignment for the benefit of creditors of jrroperty in the hands of a third person for sale, the assignee may maintain an action of assumpsit against such third person upon an express promise made to the assignor to pay the proceeds of the sale to the assignor or his assignee; and in such case the plaintiff may recover on the common counts.
    Where there is an assignment for the benefit of creditors, the assignee should sue alone for the recovery of the assets ; the agent should not be joined with him in the action.
    BEFORE WITHERS, J., AT CHARLESTON, JANUARY TERM, Í859.
    The report of his Honor, the presiding Judge, is as follows:
    “ So far as I could gather the nature of this action, it was in assumpsit for money had and received by the defendants to the use of Salas, assignee of P. A. Aveilhe. The money sought to be recovered arose from the sale of .molasses shipped to P. A. Aveilhe, but arriving after he had failed, or saw he must stop and make an assignment, he turned over the cargo of molasses by transferring the bill of lading to the defendants for sale and delivery to purchasers, upon a contract, (according to the evidence received,) that they would pay the proceeds to Aveilhe or Ms assignee. So far as the grounds of appeal for a nonsuit rest upon the precise language of the declaration, they must be judged of by reference to a copy thereof, which I have not.
    “ The cargo of molasses was shipped to P. A. Aveilhe, as consignee, by Crespo, Estafani & .Lopez, Matanzas, per pol-acre Despejada, and it arrived at Charleston on the morning of the 18th February, 1858. On that day by the Isabel, P. A. Aveilhe addressed a letter to the shippers, or consignees, in which he advised them of the arrival of the vessel that morning, with advices from them of the 6th February, and observed : ‘ I have transferred to Messrs. Gay, Mortimer & Co., the consignment, (molasses cargo,) as well the sale of the whole thereof, and that I had already effected. I have equally passed to them (O. M. & Co.) the funds relative to (belonging to) said vessel, from my inability to continue business, as will be seen per my accompanying circular. Those gentlemen will attend to the delivery of said (molasses) cargo to the purchasers.’ The foregoing extract is a free translation from the Spanish.
    “ On the 20th February, two days after the date of the letter, P. A. Aveilhe made a formal assignment, and a general one, accompanied by a schedule, including therein ‘venture of molasses by Despejada in the hands of Cay, Mortimer & Co.’ There were three classes of creditors preferred by name. In the third were named the shippers of the molasses.
    
      
      “ Pahlo Garran, who was examined by commission, was in the second class of the creditors preferred. On his voire dire, he said he' was to receive nothing from this suit; had no interest in the vessel that brought the cargo of/ molasses, or in the latter: was a creditor of Aveilhe, and preferred in the second class; that he had read, but did not understand, the deed of assignment; that he was captain of the N.; that the fund his vessel brought to Charleston belonged to parties interested in it, not to him individually, but it was entrusted to his care by parties, some of whom were part owners of the vessel, and Aveilhe was responsible for the amount to him, as agent of the parties (or master of the vessel bringing it,) who were interested in the fund; that he was paid, as commander, so much per voyage. The condition of his compensation was, that the vessel should make something on the voyage. As captain or master, he was to receive nothing from the funds brought, because he was to be paid, as agent of the' funds, from what profit was made out of them. As nothing is made out of the funds brought this voyage, he would receive nothing as agent, but would be paid one hundred and twenty-five dollars for the voyage, as navigator. If funds were reimbursed to the owners, what he would receive as agent depended on the profits the voyage might yield. In this case, if the five thousand dollars due him, as agent, were paid, he would receive nothing. He was not interested in the fund entrusted to his care. If the profits of the voyage were two thousand dollars, he did not know what proportion of that he would receive; if there were any profits from the voyage, he would receive something beyond the one hundred and twenty-five dollars.
    “ I was informed the assignment by Aveilhe provided for the payment of five thousand two hundred dollars to Pablo Carran, as master, cash delivered to Aveilhe by him.
    “I admitted his testimo^r, as coming from a competent witness, against objection, which gives rise to the first ground of appeal for a new trial. I rejected the testimony of the captain of the Despejada, which brought the molasses, for what I supposed to be a direct interest in the issue ; or,, to speak more correctly, on intimation that I would, his testimony was withdrawn. I conceived that the cash which Garran brought and handed to Aveilhe belonged entirely to-other persons; that he had no interest in it whatever, since (as he said) it could make no profits by investment in a re-return cargo, and in such profits only did he ever have any interest.
    “He said, that he recollected a conversation that took place between Aveilhe and Mortimer, one of the defendants, several days after Aveilhe failed, whether after or on the day a memorandum of it was dated, he did not remember. (That was dated February 25th, 1858.) Mortimer promised to pay over the nett proceeds of the Despejada cargo, to Aveilhe or his assignee; he knew of no other promise made by him on the subject. The memorandum he signed was drawn in the office of Poujaud & Salas; and when he signed it, he did not know in what class he was ranked among Aveilhe’s creditors. He came consigned to Aveilhe, and after his failure transferred his business to Poujaud k-Salas. He was here when the vessel that brought the molasses' arrived, and Aveilhe told him repeatedly the proceeds would be paid to him or his assignee; and previous to the conversation alluded to Aveilhe mentioned this. ,
    “It appeared in evidence, that a letter written on the 18th February, and sent per Isabel, would not reach Matanzas before the 22d. It will be remembered, that the assignment was made by Aveilhe on the 20th February.
    “ The questions in the case were:
    1. Gould the plaintiff sue on the promise proved ?
    2. Had he brought a proper form of action ?
    3. Had the shippers in Matanzas alone the right of action?
    4. Was Pablo Carran a competent witness?
    
      “ I ‘held, on all these points, in favor of the plaintiff.; and he had a verdict for what was claimed, to wit, for two thousand and forty-eight dollars and ninety-five cents, without interest.
    The defendants appealed and now renewed their motion for a nonsuit, on the grounds:
    1. Because it is respectfully submitted, that the cause of action sued upon is not assignable under the Act of 1798, so as to entitle the assignee to bring the action in his own name.
    2. Because, conceding that the cause of action was sq assignable, the plaintiff in his declaration did not sue as assignee, or set up any claim as such.
    8. Because, after the appointment of an agent of the creditors, suit upon the promise made to the assignee should have been brought in the joint names of both assignee and agent; if it could have been brought in any other form than that of the assignor, for the use of the assignee and agent.
    
      4. Because the promise should have been specially declared upon, and not sustained simply by the money counts.
    And failing in their motion for a nonsuit, they moved for a new trial on the grounds :
    1. Because, it is respectfully submitted, that his Honor erred in admitting as competent the testimony of Pablo Carran.
    2. Because, it is respectfully submitted, that his Honor erred in ruling, that after the receipt of the goods by the defendants, and while in their possession, Crespo, Estefani and Lopez, the- vendors, could not exercise the right of stoppage in transitu.
    
    
      3. Because, neither in law, nor in fact, was there any promise to the plaintiff, as assignee or otherwise.
    
      Mowry, Simons, for appellant,
    cited 6 Stat., 330, 33, 365; 4 Rich, 243; 11 Rich., 432.
    
      O' Connor, Memminger, contra,
    cited 1 Stark., 104; 1 Bail., 473; 1 Bay, 116; 1 Bay, 6; 1 H. Bl, 239 ; 5 Pet., 597; 12 Johns. Rep, 276; 23 Eng. O. L. R, 309; 4 Taunt, 326; 1 McC, 106; 2 Hill, 587; 1 Hill, 291; 31 Eng. O. L. R, 396; 10 Eng. C. L. R, 248; Rice, 176.
   The opinion of the Court was delivered by

O’Neall) C. J.

In this case it is first necessary to settle the competency of Pablo Carran.

The party objecting to him chose to examine him on his voir dire. He declared that he had no interest in this suit. This declaration is not plainly contradicted by the deed of assignment, or any thing which otherwise appears in the case. He had no interest, it seems, beyond that of agent for other párties. He brought on for other persons to Mr. Aveilhe, the assignor, a large sum of money five thousand two hundred dollars to be invested for the return voyage; to refund this sum the deed of assignment makes provision. This was an assignment for him as agent. He had, therefore, no personal interest. To disqualify him, he must have a direct, beneficial interest in the event of suit. Not .having it, it follows, that he is competent.

2. Without looking directly to the assignment, if Mr. Oar-ran is to be believed, the plaintiff is entitled to recover on the promise. Eor he has proved a promise by the defendants to pay to the assignor, or his assignee, the proceeds of the cargo of molasses. Whether that promise was made before, or after the assignment, the plaintiff) the assignee, is entitled to recover. Eor the promise proved was in direct reference to the assignment, whether made or to be madp. But the proof is of that kind, which may lead one to conclude, that it was made after the assignment, and after the verdict of the jury it is vain to ask for a nonsuit or a new trial, on the supposition, that the promise was made before the assignment. The cargo of molasses was by the assignment conveyed to the plaintiff, the promise to pay him the proceeds is in exact conformity to what law and justice require: and I think there would.be no difficulty, in maintaining the action in the name of the assignee even without proof of the express promise. The case of Ferrall vs. Paine, 2 Strob., 293, would sustain the case in that view. But when an express promise is proved there can be no objection to the assignee’s maintenance of the action, Lane, Son and Fraser vs. Winthrop, Todd and Winthrop, 1 Bay, 116.

3. There is no necessity to name the agent, in an action by the assignee. Indeed the joinder would be error. For the assignment conveys the assignor's interest to the assignee. The appointment of the agent is subsequent: he is merely appointed as a sort of custodian for the creditors.

4. It seems to me the promise is sufficiently declared upon, and therefore there is nothing in the first ground for nonsuit. But, if there be any objection to it, the money counts are quite enough. For under them, the defendants must account to the owner of the molasses (the assignee)- for the proceeds. Marvin vs. M'Crae, Rice, 171, 176.

5. On all the grounds, I think the defendants’ motion must fail. The facts were brought out possibly in a rather .obscure way. Still they have satisfied the jury: and we do not interfere unless there be manifest error.

The motion for a nonsuit or new trial is dismissed.

Johnstone and Wakdlaw, JJ., concurred.

Motion dismissed.  