Snead v. Bell

TYSON, J. The 10th and 11th counts of the complaint, added by way of amendment, and upon which a recovery was had, shows that the recovery sought is by Bell, the plaintiff, as assignee of Knight, Henry & Company, a corporation, for the benefit of the creditors of that corporation, for the breach of a verbal agreement or contract for the sale of certain cotton by defendant to Knight, Henry & Company. One proposition raised by the demurrer to these counts is that Bell as assignee cannot sue in his own name on the contract alleged. At common law choses in action with the exception of negotiable instruments, were held not to be assignable, unless the debtor assented to the assignment and promised to pay the assignee, in which case the assignee might maintain an action against the debtor on the express promise to pay. — Goodwyn v. Lloyd, 8 Porter, 240, Brickell’s Digest, § 3 p. 124. And in the early period of the administration of the common law, equitable titles acquired by assignment of ncn-negotiable choses in action were not recognized by courts of law and the remedy of the assignee was in equity. However, later, courts of law began to recognize the equitable rights of the assignee and, at the present time, though the assignee be afforded ho aid by legislation, these courts will recognize the assignment and permit the assignee to enforce his rights by suing in the name of the assignor. — Black v. Everett, 5 S. & P. 60; P. & M. Ins. Co. v. Tunstall, 72 Ala. 148; 1 Brick. Dig. § § 56, 57, p. 127; 2 Brick. Dig. § 129, p. 338; 7 Ency. Pl. & Pr. pp. 732. 733. The contract or agreement, the breach of which is relied upon for a recovery, is not for the payment of money either express or implied, and, therefore, not governed by section 28 of the Code of 1896 which requires the action, where such is the case, to be prosecuted in the name of the party really interested. Nor is it within the provisions of section 876 of the Code which authorizes the endorsee to maintain an action upon all bonds, [456] contracts and writings for the payment of money or other thing or the performance of any act or duty, assigned to him by endorsement. The demurrer to the counts should have been sustained. — Phillips v. Sellers, 42 Ala. 658. Reversed and remanded. McClellan, C. J., Simpson and Anderson, J.J., concurring.