Supreme Court of New Hampshire, 1883

Pinkham v. Benton

Supreme Court of New Hampshire · Decided June 5, 1883 · Blodgett, Clark

62 N.H. 687

Counsel

D.C. Pinkham (with whom were W. H. Heywood), for the plaintiff. The plaintiff being the party with whom the contract was made, can maintain this suit in his name, as the agent of Boyce and by virtue of his lien not only as attorney, but as trustee of Boyce. Doe v. Thompson, 22 N.H. 217 , and authorities cited; Ilsley v. Merriam, 7 Cush. 243; Buffum v. Chadwick, 8 Mass. 103 — S.C., 3 Pick. 322 — S.C., 13 Gray 67; Dennett v. Cutts, 11 N.H. 163 ; Wright v. Cobleigh. 21 N.H. 339 . When the nominal promisee is agent, having a beneficial interest in the performance of the contract, or a special property in the subject-matter of the agreement, the legal interest and right of action are in him. Porter v. Raymond, 53 N.H. 519 . The plaintiff's agency from Boyce is clear, his beneficial interest in the performance of the contract is equally certain, and his special property in the subject-matter of the agreement is established by the case. The statute of frauds does not apply to sales of this character. An execution is not "goods, wares, and merchandise," within the meaning of the statute, any more than promissory notes. The latter are not so held, in Whittemore v. Gibbs, 24 N.H. 484 . And, further, the execution, the article bargained for, was delivered just according to contract when called for. The plaintiff's book was competent evidence for the purpose for which it was used, viz., as a memorandum made at the time of the delivery, and supported by the testimony of the plaintiff, who made said memorandum in his own handwriting. Webster v. Clark, 30 N.H. 245 ; Haven v. Wendell, 11 N.H. 112 ; Watson v. Walker, 28 N.H. 471 . Ossian Ray, for the defendant. The defendant objects to the recovery of the Boyce judgment against Sumner because it is not, and never was, Pinkham's property. The judgment and execution belonged to Boyce. The plaintiff was merely Boyce's agent, both in recovering the judgment and in the alleged sale of it to Benton. Hence, according to the plainest principles of the law, any action to recover this item of Benton must be brought by Boyce, the real and known party in interest. It makes no difference that Pinkham may have had a lien upon the judgment for his fees and disbursements in the suit Boyce against Sumner, nor that he had paid money other ways for Boyce's benefit, in all amounting to about $150. Pinkham acted throughout as the agent and attorney of Boyce. Indeed, the case expressly finds that Boyce had never sold or assigned his judgment to Pinkham, and that Pinkham had no title to it at the time it was bargained to Benton, unless the law gave him a lien upon it for services and money paid as Boyce's attorney. There is a broad distinction between the right of an agent to keep securities of his principal for his own indemnity, as held in Dennett v. Cutts, 11 N.H. 163 , and the right claimed here that the agent may sue and recover a debt due the principal where there has been no written or express promise to pay such agent. Neither does it make any difference that Pinkham, through some understanding or agreement with Boyce, had allowed himself to be charged as trustee of Boyce, and had paid judgments against Boyce, relying on the demand against Sumner for indemnity and reimbursement. This gave him, possibly, a lien to this extent on the Sumner demand, but gave his no right to maintain in his own name an action on Boyce's contract to sell the Sumner judgment to Benton. It is a mere pretence that Benton ever promised to pay Pinkham. If he made any promise, it was to pay Boyce. In Wright v. Cobleigh, 21 N.H. 339 , Bell, J., says the lien of an attorney upon a judgment is limited to his fees and disbursements in that particular cause. There can be no possession of a judgment. "The execution is no such representative of the judgment as to give to the holder any control over the judgment. Neither does the possession of the execution, or of a copy of the judgment by the attorney, or any third person, disable a creditor from exercising any of his rights as such. The indispensable requisite to any ordinary lien, possession, is wanting." Doe v. Thompson, 22 N.H. 217 , is not in point, nor is Porter v. Raymond, 53 N.H. 519 . The plaintiff's book of accounts was incompetent. This item is not the subject of book charge. Neither was the book admissible as a memorandum. It was received as original evidence corroborating Pinkham's oath, and not to revive his fading memory touching the transaction.

Opinion of the Court

Blodgett, J.

At the argument before the court, counsel for the defendant abandoned all of the exceptions taken at the trial but two, both of which relate to the sale of the Boyce execution.

The first raises the objection that the plaintiff cannot maintain an action in his own name for the recovery of that item, because, at the time of its sale, he did not own it. But ownership is not the test, nor is it material whether the plaintiff contracted in respect of the execution as principal or agent; for if Boyce is to be regarded as the owner, it is enough to enable the plaintiff to maintain an action upon the defendant’s promise that it was made to him personally by Boyce’s appointment, and that he had an interest or property in the subject-matter of it. Porter v. Raymond, 53 N. H. 519, 526; Fisher v. Ellis, 3 Pick. 322, 325; Thompson v. Page, 1 Met. 565, 570; Kent v. Bornstein, 12 Allen 342, 343; Spencer v. Field, 10 Wend. 87; Whitehead v. Potter, 4 Ired. 257, 264; Sargent v. Morris, 3 B. & Al. 277, per Bayley, J.; 1 Wait Act. & Def. 280; 1 Ch. Pl. 7; Sto. Ag., ss. 393, 397.

The second raises the question whether the plaintiff’s account-book, containing a charge to the defendant of the execution, was competent evidence to prove its sale. According to all the authorities it was not; in fact, counsel for the plaintiff have not argued to the contrary. But-they contend that the book was admissible as a memorandum made by the plaintiff at the time the execution was delivered to the defendant. To this contention there are two decisive answers at least: first, the report of the referee shows that the book itself was received and weighed by him as competent evidence; and, second, the reported facts show that it was not admissible as a memorandum because-it did not come within the established rule, which is, that a memorandum can only be read in evidence when the witness 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. Kelsea v. Fletcher, 48 N. H. 282, 284; Watts v. Sawyer, 55 N. H. 38, 40.

There must be a new trial as to the execution; but for the bal *691 anee of his claim, that-is, for the items of §50.34 and §19.74, the plaintiff is entitled to judgment on the report.

Ordered accordingly.

Clark, J., did not sit: the others concurred.

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