Tuller v. Arnold

Haynes, C. —Defendants were indebted to each of two business houses in Chicago for goods sold and delivered. The accounts were assigned to the plaintiff, who had prior to that time been admitted to practice in the superior court, but who was a clerk in the office of John H. Dickinson, Esq., who appeared as plaintiff’s attorney. The answer denied the assignment and that plaintiff was the owner, alleged that plaintiff is an attorney-at-law, and connected with the law-office of John H. Dickinson, and that plaintiff bought these claims with the sole intent of bringing suit thereon. The cause was tried without a jury, and findings and judgment went for plaintiff. Defendants appealed from the judgment, and from an order denying a new trial. 1. At the conclusion of plaintiff’s evidence, defendants moved for a nonsuit. The record discloses that the motion was taken under advisement, the court understanding that neither party had any further testimony to offer, and that if the nonsuit should be granted judgment should go for defendants; otherwise, for the plaintiff. The motion was afterwards denied and judgment entered upon the findings for plaintiff, and defendants assign for error, that the court did not give them an opportunity to introduce evidence. There is nothing in the record to show that the court misunderstood the parties, or that defendants had any evidence they desired to introduce, nor does the notice of intention to move for a new trial embrace any ground under which it could be made to appear that defendants had not submitted the case as stated. 2. The assignment of the claims to plaintiff made him the proper party to bring and maintain the action. The assignors could not have sued without a re-assignment. “It is sufficient, under the code, if he (the plaintiff) holds the legal title.” (O’Connor v. Irvine, 74 Cal. 440.) The assignment of the account by the L. Wolff Manufacturing Company (a corporation) was sufficient. The secretary and general manager testi [524] fied that no special resolution was adopted authorizing it, hut that he had full power, as secretary and general manager, to do so, and there was no evidence tending to show that he had not such power. A general authorization is sufficient. 3. It sufficiently appears that the assignments were made before suit was brought. 4. The remaining ground of the motion for nonsuit was that plaintiff is an attorney at law, and that it is against the provisions of section 161 of the Penal Code for an attorney to have claims assigned to him with intent to bring suit thereon. It is not necessary to construe that section further than to say that this case is not affected by it. The evidence shows that these claims came to Mr. Dickinson for collection through a law firm in Chicago, to whom the assignors gave them for collection; that Dickinson was the correspondent of said firm here, and that the assignment was made to plaintiff as a matter of convenience for the purpose of collection. There does not appear to have been any solicitation by any attorney to the assignors that these claims be put in suit, or that they were bought by the assignee for that purpose; but, on the contrary, the assignors put them in the hands of their attorneys for collection; nor were defendants in any manner injured thereby. They were not cut off from any defense they might have had to either of these claims, if the action had been by the assignors, if such defense were alleged in the answer; and by uniting the claims in one action they were saved the costs of an additional action. 5. The findings support the judgment, and the evidence justifies the findings. 6. It was in the discretion of the court to permit the plaintiff to introduce further evidence after the motion for nonsuit was made, but before it was decided, and this discretion we think was not abused. The motion was renewed afterwards. 7. The transcript contains a notice of appeal from an order denying in part defendants’ motion to retax costs, and a bill of exceptions setting out the grounds of the motion and the action of the court thereon. Both notices of appeal were served the same day. No mention is made of this appeal in the briefs of counsel upon either side, and no other case had been docketed. We assume that the questions involved in it have been abandoned; [525] The judgment and order appealed from should be aErmed. Belcher, C., and Vancliee, C., concurred; For the reasons given in the foregoing opinion, the judgment and order appealed from are aErmed. McFarland, J., Fitzgerald, J., Paterson, J. Hearing in Bank denied.