Gaston v. Plum

Storrs, J. In chancery, it is necessary that the plaintiff, in order to sustain a suit, should have an interest in the subject of the suit, or a right to the thing demanded. Coop. Eq. PI. 166. 7 Conn. Rep. 342. In the present case, it is found by the court, that, before the bringing of the bill, the plaintiff had granted and assigned to the Mineral and Manufacturing Company all his interest, right and privilege, in the land which is the subject of the contract, of which he seeks a specific performance, and all benefit and advantage which might be derived from that contract; and from the assignment, (which is recited) it appears, that it does not even contain any covenant of warranty, or of any other description, on the part of the plaintiff. There is, therefore, such an entire destitution of interest, on his part, in the subject of this suit, that, to a bill founded on the contract set up in this case, brought by the assignee, who would be the proper plaintiff, it would not be necessary to make the present plaintiff a party ; and indeed, we see no objection to his being a witness in the cause. The plaintiff endeavours to obviate this difficulty, on the ground, 1. that the contract is fiduciary and personal in its character; and 2. that the interest of the plaintiff in it is contingent and a mere possibility; and therefore, that it is incapable of assignment. We do not think, however, that the contract is of a fiduciary character, or in the nature of a personal confidence; there is nothing in it which makes it necessary that it should be performed personally, by the plaintiff, or requires his peculiar skill, science or judgment; nor, in our opinion, is it of that uncertain and contingent description that it cannot, on [348] that account, be transferred: if it were, it is not such an interest as courts of equity would regard. They will protect it, if at all, in behalf of the real owner. The plaintiff has referred us to - v. Wallford, 4 Russell 372. In that case, Wallford, for a valuable consideration, agreed to surrender a copyhold to Curtis, who, on borrowing money from Wright, agreed with him, that he, Curtis, would surrender the same copyhold to Wright, by way of mortgage security, of which last agreement Wright gave notice to Wallford. The court held, that in a bill brought by Curtis, to compel Wallford to surrender to him, Wright need not be made a party. We do not see the bearing of that, upon the present case. There was no assignment or transfer by Curtis of any interest to Wright, but only an executory agreement between them; and in order to enable Curtis to fulfill it on his part, it was necessary that Wallford should first fulfill his prior agreement with Curtis. And the court entertained a bill on behalf of Curtis to compel Wall-ford to do so. Although it would tend to promote the execution of the agreement between Curtis and Wright, the latter had no such interest in the agreement between Curtis and Wallford as required him to be made a party in a suit brought by Curtis to enforce it. The plaintiff having no interest in the subject of the bill, it ought, for that reason, to be dismissed. i We refrain from expressing an opinion on the merits of the case. It would be improper to do so, in the absence of the assignee, who is the real party interested, and who has, therefore, a right to be heard. In this opinion the other Judges concurred. Bill dismissed.