Nixon v. Dillard

Cooper, C. J., delivered the opinion of the court. While under our laws amendments to the pleadings are liberally allowed, the insuperable obstacle to the appellants’ success is that, throughout the proceedings in the court below, they pleaded in reference to a right of action the legal title to which was in Nixon, and proved one the legal title to which was in Clark, Hood & Co. The original declaration was by Nixon, setting up a right of recovery in himself; it was the ordinary count for goods sold and delivered by the plaintiff to the defendant. The amended declaration was in the name of Nixon, for the use of Clark, Hood & Co., and it set up a right of action in Clark, Hood & Co., arising from a contract of novation, by which, by agreement of all the parties, Dillard & Johnson, who were indebted to Nixon, agreed to pay what they owed [807] him to Clark, Hood & Co., to whom Nixon was indebted, and Clark, Hood & Co. released Nixon and agreed to accept the promise of Dillard & Johnson. When this contract was made, Nixon disappeared from the scene, and no longer had any right, legal or equitable, to the cause of action; that was vested in Clark, Hood & Co., who should have sued upon it in their own name. But the evidence did not correspond with the pleadings as amended, for it showed that Dillard & Johnson had never at any time been indebted to Nixon. They agreed to buy certain machinery owned by Nixon, on which Clark, Hood & Co. had a mortgage, to secure, a debt due to them by him, and it was agreed between all the parties that Nixon should sell the machinery to Dillard & Johnson, who were to pay the purchase money to Clark, Hood & Co., and, in consideration of their promise, Clark, Hood & Co. discharged their claim against Nixon. So that, by the very terms of their original contract, Dillard & Johnson promised Clark, Hood & Co. to pay them the money; they made no promise, and came under no obligation whatever to Nixon. Whether, therefore, the facts were as stated in the declaration, or as proved, the legal relation between Nixon and all the other parties was terminated. Clark on Contracts, p. 614, note 19. One who has not the legal title to a chose in action cannot maintain a suit in his own name for the use of the holder of the legal title. Beck v. Rosser, 68 Miss., 72. The jtidgment is affirmed.