Sanborn & Warner v. Norton & Dentz

Citations

• 59 Tex. 308
• 1883 Tex. LEXIS 160

Syllabus

<p>1. Assignment — Practice — Pleading. — In an action for debt, the defendants set up by way of defense that they had made an assignment, and that the plaintiff had filed the claim sued on with the assignee properly verified; but neither in the answer or statement of facts was' there anything to show whether the assignment contained a. clause providing for their discharge from the claims of accepting creditors. Held,</p> <p>(1) The answer must he construed most strongly against the pleader.</p> <p>(2) The assignment must be regarded as a general assignment, with no provision for a release by those accepting its benefits.</p> <p>(3) Thus construed, the plaintiff was not debarred from collecting any balance that might he due on his claim after crediting it with the amount received from the assignee.</p> <p>(4) The debt being established, the plaintiff was entitled to a judgment declaring that fact, and that it should not become a lien on any of the assigned property, but that execution might issue against any property not transferred by the assignment.</p> <p>2. Assignments.— The fifth section of the act of March 24, 1879, regulating assignments, which requires that creditors shall make known their consent in writing, • . does not make consent of any other character invalid. If a creditor actually consents, though not in writing, the assignee may proceed as if such creditor were ranked among those accepting. If his claim be paid, it is conclusive evidence of acceptance.</p> <p>3. Same.— See opinion for facts held sufficient evidence of acceptance of an assignment by a creditor.</p>