Strong v. Moore

The opinion of the court was delivered by Graves, J.: The plaintiff in error objected to the introduction of any evidence under the petition, for the reason that it did not state facts sufficient to constitute a cause of action. The objection was overruled, and this ruling of the court is assigned as error. It is insisted that the petition ought to allege specifically who the Mount Arbor Nursery Company is — whether a corporation, partnership, an unincorporated association, or [439] merely a name under which an individual transacts business — and that the omission so to aver makes the pleading fatally defective. We do not agree with this contention. The Mount Arbor Nursery Company is not a party to the action, and has no interest therein; it is merely the assignor of the contract. Such an averment would have been unnecessary if the nursery company had commenced the action instead of its assignee. (Ryan v. Farmers’ Bank of Mo., 5 Kan. 658; 5 Encyc. Pl. & Pr. 71, and notes 3, 4.) The execution of the contract and its assignment to the defendant in error are fully admitted by the failure to verify the answer. (Code, § 108; Gen. Stat. 1901, § 4542.) The assignment gave the assignee all the rights under the contract possessed by the assignor. It is urged that this contract was not negotiable, and therefore that the defendant in error acquired no rights thereto. It is not claimed to be negotiable, like bills of exchange, promissory notes and other paper under the law merchant, but only that it can be transferred like other property, mere change of possession being sufficient. (Code, §§ 26, 27; Gen. Stat. 1901, §§ 4454, 4455; Washington v. Hobart, 17 Kan. 275, 277; James Clark & Co. v. Wiss & Ballard, 34 Kan. 553, 555, 9 Pac. 281; McCrum v. Corby, 11 Kan. 464, 470; Krapp v. Eldridge, 33 Kan. 106, 108, 5 Pac. 372.) The nursery company would -not be permitted to deny the name of its own adoption. The defendant in error, who as agent for the company induced the plaintiff in error to execute the contract, cannot dispute the name of his assignor, and the plaintiff in error, after dealing with the company in the name under which it transacts business, and having received and retained the property bargained for, is not in a position to cavil about names when asked to pay for what he has received on account of such transaction. Other questions are presented which depend, entirely upon the same objections, and need not be considered further. [440] Complaint is made because the court refused to grant a new trial. The ground relied upon was that of newly discovered evidence. A part of this evidence, as shown by the affidavits, is immaterial, and cumulative; no adequate diligence to procure it for the trial was shown, and in view of the discretion which courts have in matters of this character we cannot say that error was committed in this instance. (Carson, Pirie, Scott & Co. v. C. M. Henderson & Co., 34 Kan. 404, 8 Pac. 727; Baughman v. Renn, 33 Kan. 504, 6 Pac. 890; The State v. Tucker, 72 Kan. 481, 84 Pac. 126; The State v. Nimerick, 74 Kan. 658, 87 Pac. 722.) The issues presented by the pleadings were all fairly presented to the jury, and decided in favor of the defendant in error, which leaves nothing involved therein for consideration here. The judgment of the district court is affirmed.