Brown v. Patella

GRAIL, P. J.

This is an appeal from a judgment for defendants in an action brought for a deficiency on a promissory note after sale of certain real property under a trust deed. The allegation of the complaint was that the noté was assigned and transferred to the plaintiff who was the owner thereof.

Plaintiff’s evidence as to the assignment was testimony of plaintiff’s attorney as follows: “I am an attorney at law, employed by Bank of America National Trust and Savings Association, in its Legal Department, with the title of ‘ Assistant Attorney’. ... On December 26, 1934, Mr. J. S. Henton, a Vice-President of the bank handed me the note which is marked ‘Exhibit A’ and told me to endorse on it an assignment to A. G. Brown and to have it executed by a Vice-President and Assistant Secretary of the corporation, with the seal of the corporation, and to bring an action for a deficiency in the name of A. G. Brown. I brought the action for deficiency in the name of A. G. Brown, but neglected to follow instructions with respect to the endorsement by the officers to A. G. Brown and did not discover the omission until the matter came up for trial on February 10, 1937.

At the time the note was handed to me it was handed to me with the statement that it was assigned to A. G. Brown.

After the note was handed to me by Mr. Henton I gave it to my stenographer with a memorandum of facts concerning the deficiency and asked her to prepare a complaint. There was no consideration. The note was handed to Mr. Brown solely for the purpose of this suit.”

The plaintiff had the note in court at the trial and it was admitted in evidence. The plaintiff also offered in evidence a written ratification of the oral assignment made by the bank under the corporate seal, but this offer of evidence

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was erroneously rejected by the trial court. The finding of the court was “that it is not true that the note referred to in the plaintiff’s complaint was transferred and assigned to the plaintiff prior to the commencement of this action”. All of the evidence is to the effect that the note was transferred and assigned to the plaintiff prior to the commencement of the action and there is no evidence to the contrary. The finding of the court can be upheld only on the theory that an oral transfer or assignment of a promissory note is invalid. Such is not the law. An oral assignment of a promissory note is valid.