Bohanan v. Thomas

ANDERSON, J. We are of opinion that the contract, as set out in the complaint, placed the duty upon the defendant of furnishing the material for the house, and that the demurrer to the fifth plea was properl] sustained, as it did not answer the complaint. The contract, set out in the complaint, was not. such a one as required the suit brought in the name of the real owner under the terms of section 28 of the Code of 1896 (section 2489 of the Code of 1907). Nor did pleas 7 and 8 bring the suit within the provision of section 876 of the Code of 1896. Conceding, without deciding, that the contract was such an instrument that an assignment thereof, by indorsement, would authorize the bringing of a suit thereon by the assignee, the pleas do not aver that it was assigned by indorsement, as is required by the statute. — Snead v. Bell, 142 Ala. 449, 38 South. 259. While the contract set out is not such a one as authorizes suit, under the statute, in the name of the beneficial owner, and the pleas do not bring it. within the influence of section 876 of the Code of 1896, yet pleas 7 and 8 do aver that Hood became the real owner before the commencement of the suit. This being true, the suit should be in the name of the present plaintiff, but for* the use or benefit of Hood. The assignment, if made for a valuable consideration, passed the equitable title to Hood, [414] vesting in him the exclusive right to the use of the name of the assignor in suing upon the contract. If the contract was assigned, the suit should he in the name of the present plaintiff for the use or benefit of Hood. — Johnson v. Martin, 54 Ala. 271, and cases there cited. In the case of Wolffe v. Eberlin, 74 Ala. 99, 49 Am. Rep. 809, a demurrer to a plea almost similar to pleas 7 and 8 in the case at bar was sustained; but a careful consideration of this case discloses that the plea did not aver that the assignment was made before the suit was brought, and the opinion stresses this fact. Pleas 7 and 8 were not subject to the grounds of demurrer assigned thereto, and the judgment of the circuit court is reversed, and the cause is remanded. Reversed and remanded. Dowdell, C. J., and McClellan, Mayfield, and Sayre, JJ., concur.