Peck v. Dodds

By tbe Court, Beatty, J.: Tbe defendants in this case set up in their answer and on tbe trial proved that tbe account sued on bad been assigned by tbe plaintiff to Bishop and Glissan before tbe commencement of tbe action, and themselves notified. The assignment referred to is in writing, and recites that it is made in consideration of tbe assumption by tbe assignees of certain debts of tbe assignor. It provides that tbe assignees are to take possession and dispose of tbe property enumerated, collect the accounts, and after paying themselves tbe amount of tbe debts assumed and their necessary expenses in managing tbe business, to return any overplus to tbe plaintiff. In tbe meantime tbe sale and assignment are to be absolute. There can be no doubt that so long as this assignment remained in force tbe right to sue on all accounts embraced by it was vested in tbe assignees exclusively as tbe real parties in interest. Tbe plaintiff, not denying tbe assignment nor disputing its legal operation while in force, offered to prove in rebuttal a reassignment to him of tbe particular account upon which this action was brought. Tbe testimony offered for that purpose was objected to by defendants and was admitted subject to their right to move to strike it [208] out, which they did upon the ground that it did not prove, or tend to prove, a retransfer of the account. The motion was overruled, the testimony submitted to the jury, and a verdict rendered against the defendants, up'on which plaintiff had judgment. Defendants appeal from the judgment, assigning error of the court in refusing to allow their motion to strike out as one of the grounds of appeal. We think the ruling of the court was erroneous. Giving the utmost possible effect to all the testimony offered by the plaintiff on this point, and conceding the validity of a reassignment by parol, there is nothing to show such reassignment or any intention of the assignees to make one. It is true, they told plaintiff to collect the, account in his own name, and to sue on it and to attach; but they coupled these directions with an express refusal to reassign. They seem to have thought that they could give plaintiff authority to sue, while they retained the absolute property in the account, and with it, of course, the right to sue in their own names. But, clearly, the defendants could not be liable to assignor and assignees at the same time, and as Bishop and Glissan had an undoubted right to sue when this action was commenced, the plaintiff must necessarily fail. Judgment reversed.