Evidence, Docket entries. Judgment. Assignment. Practice, Civil, Amendment, Parties. Municipal Court of the City of Boston, Appellate Division. Accord and Satisfaction. Contract, Construction.
Docket entries, until extended in books of record, are admissible to prove the recovery of a domestic judgment.
A domestic judgment cannot be attacked collaterally but is reversible only on a writ of error.
In an action upon a judgment by one claiming as assignee of the judgment creditor by a parol assignment, the question, whether the transfer was made as alleged, is one of fact and a finding of the trial judge, that such a transfer was made, will not be reversed where there was evidence warranting it.
R. L. c. 173, § 4, requiring the assignment of a non-negotiable legal chose in action to be in writing in order that the assignee may maintain an action thereon in his own name, does not prevent the assignee under a parol assignment from bringing an action thereon in the name of the assignor.
The Appellate Division of the Municipal Court of the City of Boston, at the hearing of a report by a judge, who had heard an action upon a judgment, brought in the name of the judgment creditor by one to whom the judgment had been assigned by the judgment creditor by a parol assignment, and who had found for the plaintiff, where the writ contained no statement that the action was brought for the benefit of the assignee, may allow a motion by the plaintiff to amend the writ by stating that the action was so brought.
If the owner of a judgment under an oral agreement with the judgment debtor receives merchandise from time to time and applies the value thereof to the reduction of the judgment debt, such executed agreement does not amount to an accord and satisfaction nor preclude recovery, in an action upon the judgment, of the unsatisfied balance of the judgment debt.
BRALEY, J.
It is settled that until extended in books of record docket entries are admissible to prove the recovery of a domestic judgment which cannot be attacked collaterally, but is reversible only on writ of error. McGrath v. Seagrave, 2 Allen, 443. Central Bridge Corp. v. Lowell, 15 Gray, 106. Joyce v. Thompson, 229 Mass. 106. The judgment obtained against each defendant consequently must be held as valid and conclusive.
It is next urged that the parol assignments of the judgment creditor to his counsel in payment for professional services and in whose interest the actions are brought and prosecuted are not only invalid, but the assignee cannot enforce the judgment by an action in his own name. It was a question of fact whether the judgment creditor had transferred his rights as alleged, and the finding of the trial judge that the agreements had been proved was warranted by the evidence. The assignee accordingly acquired the beneficial ownership of the judgments. Norton v. Piscataqua Fire Marine Ins. Co. 111 Mass. 532, 535.
The actions were begun in the name of the assignor. But even if R. L. c. 173, § 4, requires the assignment of a non-negotiable legal chose in action to be in writing, or the assignee cannot maintain an action thereon in his own name, yet where he has the sole beneficial interest as in the cases at bar he can sue in the name of the assignor, and the amendment, adding after the name of the judgment creditor as plaintiff, the averment that the action is brought for the use and benefit of the assignee, was properly allowed. Lane v. Lane, 8 Allen, 350, 353. Hewins v. Baker, 161 Mass. 320, 324. Jump v. Leon, 192 Mass. 511, 513, 514. Kelly v. Greany, 216 Mass. 296. Noble v. Brooks, 224 Mass. 288. The defendants also are fully protected from any contingency of double liability. Hall v. Henry Thayer Co. 225 Mass. 151, 153.
If any questions as to the admission of evidence are open on the record no error appears, and the ruling, that the executed agreement made between the assignee and the defendant in the first case, that money as it became due the defendant from the assignee for printing should be applied in partial satisfaction of the judgment, did not amount to an accord and satisfaction, or preclude recovery for the unsatisfied balance, was correct. Wilson v. Powers, 130 Mass. 127. Bragg v. Danielson, 141 Mass. 195.
We are therefore of opinion that all of the rulings in so far as not given were denied rightly, and that the order of the Appellate Division dismissing the report should be affirmed in each case.
So ordered.