Payment. Assignment. Receipt. In an action against a consignee of goods, which previously had been delivered, for freight charges, in which the plaintiff sued as the assignee of a transportation company to which the charges were alleged to be due from the defendant, and in which the defendant relied on the defense of payment, it appeared that the plaintiff was the head clerk in Boston of the transportation company, a Maryland corporation, whose corporation offices were at Baltimore, that the plaintiff, contrary to a rule of the company, delivered the goods to a teamster, who for years had received and paid for freight consigned to the defendant, without prepayment of the charges, that afterwards the teamster failed to pay the charges and the defendant refused to pay them, that thereupon the plaintiff paid the amount of the charges to his employer, the transportation company, and received from that company an instrument acknowledging the receipt from the plaintiff of the amount paid by him "covering freight and charges" on the shipments in question. The plaintiff testified that before the payment he explained the situation to the auditor of the company and that the auditor "was to get an assignment of the company from Baltimore," and that later the plaintiff received an instrument, which had been forwarded to Baltimore for execution, purporting to assign to the plaintiff the claim of the company against the defendant for the freight charges in question. The defendant contended that the claim of the transportation company had been extinguished upon its payment by the plaintiff, and could not be revived by the subsequent delivery of the assignment. Held, that there was evidence warranting a finding that the amount paid by the plaintiff to the transportation company was not paid in satisfaction of the freight charges but was paid for an assignment of the claim against the defendant and so was received by the transportation company, and that the plaintiff was entitled to recover against the defendant under the assignment.
MORTON, J.
The sole question in this case is whether what took place between the plaintiff and the auditor of the Transportation Company upon receipt by the latter from the plaintiff of the amount of the Transportation Company's demand against the defendant operated as a payment and satisfaction of it or as an assignment of it. If the amount was tendered and received as a payment it extinguished the demand. Whether it was so tendered and received or not depended on what the understanding was at the time when the Transportation Company received the money. If the amount was then tendered and received as a payment, no afterthought or subsequent understanding could revive the demand in the plaintiff's favor, though if it was tendered and received for an assignment the parties could afterwards agree that it should be regarded as a payment. We think that there was evidence warranting a finding that an assignment and not a payment was intended and that the money was so paid by the plaintiff and so received by the Transportation Company.
In the first place the language of the receipt was peculiar. It was not a receipt of the sum named as payment of the freight and charges, as would have been more natural if the sum named had been taken in satisfaction of the demand, but it was a receipt of the sum named as "covering" freight and charges. This was or could be found to have been more consistent with an assignment than a payment having been intended. Again, in answer to questions put by the presiding judge, the plaintiff, though saying at first that he had no talk with the auditor before paying the money about the assignment that was subsequently sent to him, finally said that he thought that before he paid the money to the auditor he explained the situation to him "and that he was to get an assignment of the Company from Baltimore." It is true that later he modified this somewhat. But it was for the jury to say what weight should be given to his testimony. It could not be ruled as matter of law, we think, that it did not warrant them in finding, as they did, that the Transportation Company made a valid assignment to the plaintiff.
Still further, the circumstances under which the plaintiff apparently became liable to the Transportation Company were such as to render it not unreasonable to say the least to suppose that the Transportation Company desired to assist him so far as it properly could and for that reason intended the transaction to take the form of an assignment rather than of a payment.
The result is that according to the terms of the report judgment will be entered for the plaintiff for $298.80 with interest from the date of the writ.
So ordered.