Grippen v. Benham

The opinion of the court was delivered by Dunbar, C. J. The questions involved in this case are: First. Can a joint creditor assign his undivided interest in an entire contract for the payment of money? Second. Can appellant’s claim in this case be assigned excepting in writing ? Third. Are the allegations of title in the former suit against Meyer conclusive ? Fourth. Does the fact that real estate represented in the contract is community property render the assignment of a claim by the wife void? As to the first proposition, the reason of the rule that there cannot be a partial assignment of an entire contract, or, in other words, an assignment of an undivided interest, is that the debtor shall not be harassed with a multiplicity of settlements, and that he has a right to stand on his contract as an entirety, and, as said in Gibson v. Gooke, 20 Pick. 15: ‘ ‘A debtor is not to have his responsibilities so far varied from the terms of his original contract as to subject him to distinct demands on the part of several persons, when his contract is one and entire. ’ ’ [593] Of course, if a creditor cannot divide the contract, by parity of reasoning he cannot by assignment enable others to do so against the debtor’s will; but none of the cases hold that the debtor cannot consent to the assignment. It is simply a right that he has, to stand upon his contract. And under the rule laid down in Marziou v. Pioche, 8 Cal. 522, the objection can only be made by the debtor. The court, in that case, on page 536, says: “The creditor has not the right to assign the debt in parcels, and thus, by splitting up the cause of action, subject his debtor to the costs and expenses of more suits than the parties originally contemplated. But when the debtor himself does not object, no other party can object for him. ” But in this case, under no circumstances can it be held void. : The debtor has not objected; under the testimony attempted to be introduced the respondent did not object, but, on the other hand, ratified the assignment. And in fact there is no question of divisibility the debtor could have objected to, because the parties to the contract had assigned their interest to the respondent, and she was the owner of the entire interest. Statutes of fraud do not figure in the case, for it was an executed contract, and all the transactions had been fully ratified by respondent, if the testimony offered was true. The testimony tending to show execution and ratification ought to have been submitted to the jury so that they could have passed upon those questions. And if the testimony had shown that the contract was executed, it would also have disposed of the second objection that the contract fell within the statute of frauds because it was not in writing. The court also erred, we think, in not allowing appellant to explain how she became a party to the former suit. If this had been a suit between the same parties, of course, under the general rule she would have been bound by her [594] declarations in the former suit, but such is not the case here. She had a right to show, if such was the fact, that the suit was really brought in the interest and at the instigation of the respondent, and if that fact were established it would estop the respondent instead of the appellant. So far as the last proposition is concerned, viz., the question of community interest, this court disposed of that objection adverse to the respondent’s contention in Colcord v. Leddy, 4 Wash. 791 (31 Pac. Rep. 320), and in Hunt v. Stearns, ante, p. 167. The testimony concerning the payment of this note by assignment of the Meyer contract, which was withdrawn from the jury by the instructions of the court, ought to have been admitted, and if the jury believed from the testimony that the appellant offered and respondent accepted such contract in part or whole payment of the note, and that the note was delivered up to appellant with the understanding between the parties that it was paid, then in the absence of any fraud on the part of the appellant which would vitiate the settlement, the appellant would be entitled to a verdict at the hands of the jury. The whole testimony should have been submitted to the jury for their determination. . The judgment must be reversed, and the cause remanded to the lower court with instructions to grant a new trial. Hoyt, Scott, Stiles and Anders, JJ., concur.