Opinion
Argued May 25, 1874
Decided September term, 1874
Geo. N. Kennedy for the appellant.
Wm. C. Ruger for the respondent.
The plaintiff had no knowledge that Gillett was discharged, and she was not bound to obtain such knowledge at the county clerk's office. The record of the discharge did not give her constructive notice thereof. Nothing short of actual notice would deprive her of the remedy which she seeks. The assignment to plaintiff was made by Buchan alone, after the dissolution of the firm, in the firm name. This was sufficient to vest in the plaintiff all the title the firm had to the whole judgment. ( Pierson v. Hooker, 3 J.R., 68; Van Kuren v. Parmelee, 2 N.Y., 525; Milliken v. Loring, 37 Me., 408; Colyer on Part., § 546.) While he could bind his late partner by the transfer, he could not bind him by any new contract; and hence Rich was not bound by the covenants contained in the transfer, and they bind only Buchan who made them.
We are thus brought to the main question in this case, and that is, whether there was any covenant in the assignment that all the judgment debtors remained liable upon the judgment; or, in other words, that the amount of the judgment was due from all of the defendants therein. There is in the instrument executed by the defendant an assignment of the judgment, and of all moneys that may be obtained thereon; there is authority to take all legal proceedings to collect the same; there is a covenant that the assignors will not collect the same, nor release or discharge the judgment; and a covenant that the sum of $1,038.46, the whole amount of the recovery, is due on the judgment What is meant by a statement that an amount is due? That it is due from some one. When, as here, the names of the parties are mentioned against whom the judgment was recovered, and it is a judgment against them which is assigned, a covenant that the amount of the judgment is due must mean that it is due from all the judgment debtors. It seems to me that all men would thus understand the language. To hold that this language would be satisfied if four of six, or one of six judgment debtors had been released, and that it meant simply that the amount specified was abstractly due on the judgment from some one, would be doing violence to the plain meaning of language and the manifest intention of the parties.
There was, therefore, a breach of this covenant, and the only remaining question is as to the rule of damage. The referee awarded the plaintiff only the purchase-price with interest. She was entitled to recover the difference between the value of the judgment as it was, and its value if Gillett had not been released. The same rule must be applied which is applied in the case of breach of warranties in the sale of chattels. (Sedgwick on Damages, 371; Janson v. Ball, 6 Cow., 628; Furniss v. Ferguson, 15 N.Y., 437; S.C., 34 id., 485.)
The judgment must be reversed and new trial granted, costs to abide event.
All concur.
Judgment reversed.