State Ex. Rel. Petty v. Rousseau

Ashe, J. (after stating the facts). The record presents four questions for our consideration. 1. Was there error in the refusal of the Court to give the instructions asked by the plaintiff? 2. Was there error in directing the jury to reconsider their verdict and make it responsive to the issues? -3. Did M. N. Petty have the right to maintain the action as relator ? 4. Was there error in the charge given by the Court to the jury? *361 Our opinion is, there was do error in the refusal to give the instructions asked by the plaintiff, nor in the instructions given by the Court. These exceptions, the first and fourth, will be considered together, as they involve the same questions. The instructions asked', are predicated upon the fallacious assumption, that the contract made by the relator and F. S. Doughton was executory, and the relator being an infant at the time, there was not sufficient evidence to warrant the jury in coming to the conclusion that there was a ratification by the relator, after he became of age. But the evidence in the case is plenary, that the relator, while under age, sold to Doughton all his interest in his mother’s estate, which had come to the hands of B. F. Petty as his guardian. There was no evidence that he would sell or assign this interest when he reached his majority, but the sale was absolute and for a consideration, for which he agreed to give a receipt for when he became of age. It was therefore an executed contract, and the principle applicable to the ratification of such a contract, is different from that which applies to an executory contract. His Honor, we think, clearly laid down the distinction in his charge to the jury, when he said: “ Direct and express affirmation must be shown, if the contract is executory. If the contract is an executed contract, the affirmation may be inferred from circumstances,” and in this he is fully supported by very high authority. Mr. Greenleaf lays it down, that “there is a distinction between those acts and words which are necessary to ratify an executory contract, and those which are sufficient to ratify an executed contract. In the latter case, any act amounting to an explicit acknowledgment of liability, will operate as a ratification; as in the case of a purchase of land or goods, if after coming of age, he continues to hold the property and treats it as his own. But in order to ratify an executory agreement, there must not only be an acknowledgment of liability, but an express confirmation or new promise, voluntarily and deliberately made by the infant, upon his coming of age, and with the knowledge that he is not legally liable. 2 Greenleaf Ev. §367; Turner v. Gaither, 83 N. C., 357. *362 The charge of his Honor is further well supported by the decision of this Court in the case of Alexander v. Hutchison, 1 Dev., 13, where it is held by Tayloh, C. J., and Hall, Judge, that it should be left to the jury to determine whether they could infer from the defendant’s behavior, a clear and unequivocal assent to, and ratification of the contract. “It may be by words, it may be by signs or acts — anything which shows an acquiescence, oran assent of the parties’ mind is sufficient.” Skinner v. Maxwell, 68 N. C., 45. Here the relator received the consideration of the contract, which consisted of a horse, mule, bridle and saddle, and money, which from aught that appears, he never returned, and afier the sale he admitted to different persons that he had sold his interest in his mother’s estate to E. M. Doughton. He admitted the same thing, after he became of age, to Mrs. Parks, and her son, J. F. Parks, in 1880, and to Romulus Laxton, in the fall of 1881, and never expressed any regret or dissatisfaction with the sale. Upon this evidence, the jury were well warranted in finding there was a ratification of the contract. The agreement to give a receipt after he became of age, formed no part of the contract of sale. That was only to be given as evidence of the receipt of the consideration. The next question presented by the exceptions of the defendant'is, was there error in directing the jury to reconsider their verdict, and accepting their verdict as reformed. When the Court took a recess for the day, it was getting late at night, and the Judge left the bench without authorizing the Clerk to receive the verdict. The Clerk then had no right to receive it in his absence, and even if he had directed the Clerk to receive it, it was competent for him after his return, if the verdict was not responsive to all the issues, and the jury being in Court, and there being no suggestion of tampering, or other improper influence, to order them to retire and render a proper verdict upon the issues, in the same manner as verdicts rendered in open Court. Wright v. Hemphill, 81 N. C., 33; Willoughby v. *363 Threadgill, 72 N. C., 438 ; Robeson v. Lewis, 73 N. C., 107. “ Calling the jui’y again into the box, and instructing them to render a verdict responsive to the issues, was a matter within'the discretion of the Judge.” Willoughby v. Threadgill, supra. The Judge had the right to take that course, or discharge the jury, as he might deem most advisable. Houston v. Potts, 63 N. C., 41, but in that case it does not appear that the jury were in Court when the verdict was set aside; for aught that appears they may have been discharged, and were dispersed. Theremaining question to be considered is: Did M.N. Petty have the right to maintain the action as relator; and we are of opinion he had not the right. The evidence in the case, as we hold, was sufficient to warrant the jury in finding the fact that the relator had transferred his interest to Doughton, and the first inquiry in this connection is, was the interest of the relator such a right as might he assigned. The Code, §177, which provides that every action must be prosecuted in the name of the real party in interest, except as otherwise provided, and in case of an assignment of a thing in action, the action by the assignee shall he without prejudice to any set-off &c., is a literal copy of a similar section in the New York Code. And Mr. Bliss, in his Annotated Code, 2 vol., 270, in commenting on this section of the Code, thus lays down the rule with regard to what is or is not assignable: “Any claim or demand can be transferred, except in one of the following cases: 1st. When it is to recover damages for personal injury, or for a breach of promise to marry. 2d. When it is founded upon a grant which is made void by a statute of the State, or upon a claim to or interest in real property, a grant of which, by the transferror, would be void by such statute. 3rd. Where the transfer thereof is expressly forbidden by a statute of the State or of the United States, or would contravene public policy.” The assignment in our case does not fall within either of these prohibited classes, and according to this very high authority, the claim of M. N. Petty was an assignable interest, and having been *364 assigned, he no longer had any interest in it. All that he had was transferred to Doughton, who was the real party in interest, and was the only person, under The Code, §177, who could maintain the action. It was so held in New York, in the case of Sheridan v. Meyer, 68 N. Y., 130, which was a case involving a similar question under the Code of that State, and it was there held, that, “A plaintiff suing upon an assigned claim, is the real party in interest under the Code, if he has a valid transfer against the assignor, and holds the legal title to the demand: the defendant has no legal interest to inquire whether the transfer wás an actual sale or merely colorable, or whether a consideration was paid therefor.” In this State, before the adoption of The Code, it was held by this Court, PearSON, C. J. delivering the opinion, that when a constable had a judgment for collection, and failing to collect, paid the amount of the judgment to the plaintiff therein, and then put the judgment in the hands of another constable for collection, the first constable had the right to maintain an action as relator on the bond of the second constable. Garrow v. Maxwell, 6 Jones, 529, and this was put upon the ground, that the first constable was the purchaser of the judgment — in other words, was the assignee of the judgment. And if under the law as it then existed, the assignee in such a case, had the right to sue as relator, a fortiori would he have that right under The Code §177, which expressly provides that “every action must be prosecuted in the name of the real party in interest.” Our conclusion is, there is no error, and the judgment of the Superior Court must be affirmed. No error. Affirmed.