McPike v. McPherson

Holmes, Judge, delivered the opinion of the court. It appears that William H. Pritchartt was the holder of certain notes secured by a deed of trust on a steamboat; that Lewis A. Wei ton as principal, and Nicholas Springer and Thomas M. Wannell and others as sureties, executed a bond to Pritchartt, in consideration that he would release the boat, conditioned that they would pay the notes at maturity ; that the notes and bond were assigned by Pritchartt, after maturity of the notes, to John J. Anderson and the defendant McPherson, who instituted suit upon the bond against the the obligors, and that, pending the suit, McPherson executed an assignment, with blanks for the names of the assignees, of all his interest in the bond and in the action, and delivered the same to an attorney of Springer and Wannell; and there was conflicting testimony upon the question of fact whether their names were agreed to be inserted in the blanks as assignees. The blanks were in fact filled with their names and the assignment was delivered to them. It was alleged that this transfer was wrongful and fraudulent as against Anderson, and defeated his right to recover in the suit on the bond ; and it is averred that afterwards Anderson transferred his interest in the matter, and his right of [524] action against McPherson, to the plaintiff; and the plaintiff prays judgment for damages against the defendant to the amount of one half the notes aforesaid. The court instructed the jury for the defendant, that if the blanks were filled up with the names of Springer and Wannell against the consent of McPherson, they would find for the defendant. Instructions were refused for the plaintiff, to the effect that he was entitled to recover on the case made. The verdict was for the defendant. The case may be determined upon the question of the effect of the assignment of the interest of McPherson in the cause of action. This interest was clearly assignable. It was a chose in action arising out of contract—R. S. 1855, p. 1217, § 1. Where the right of action on a covenant by two persons was indivisible and could not be assigned in part, and the plaintiff had assigned his interest as against one of the defendants, it was held that the right of action still remained in the plaintiff—Lyon v. Lyon, 4 Bibb. 438. The assignment by McPherson did not extinguish the cause of action—Ellege v. Straughan, 2 B. Mon. 82; Bank v. Trimble, 6 B. Mon. 599. On the part of the defendants Stringer and Wannell, it amounted to no more than a payment by them of one half of the demand. As to the bond sued on, it was to be considered, not as an assignment of the instrument itself, but as an equitable assignment of the interest of the assignor in the proceeds of the suit. Such assignments are good in equity—Field v. Mayor, &c., 2 Seld. 179; Hinkle v. Wanger, 17 How. (U. S.) 368. The assignee might sue in his own name—Dobyns v. McGovern, 15 Mo. 662. The defendants could not avail themselves of the plaintiff’s want of interest—Labeaume v. Sweeny, 17 Mo. 154. If the transfer had been the consequence of the death or other disability of the party, the legal x-epresentatives might have been substituted as plaintiffs; and the statute provided that in case of transfer of any interest otherwise than by death or such disability, the action might be continxxed in the name of the original party, or the court might allow the person to whom [525] the transfer was made to be substituted as plaintiff in the action—R. S. 1855, p. 1275, § 24. Here the assignees were already parties defendant, and there was no need of any substitution of other parties. The suit might have proceeded in the name of the plaintiffs. The assignment may have been a good defence, so far, to the action by way of payment; but the other half might have been recovered to the use of Anderson. Under the practice act, there would have been no difficulty in the matter of the judgment to be rendered. The court could give judgment for or against one or more of the plaintiffs and determine the ultimate rights of the parties on either side—R. S. 1855, p. 1278, § 2. It was therefore wholly immaterial whether the interest of McPherson in the cause of action had been effectually transferred or not, and there was no error in the instruction given for the defendant. For the same reasons, the instructions for the plaintiff were rightly refused. The verdict was final upon the matters of fact. The party had a lawful right to assign his interest in the matter, and there was no ground of damages against the defendant. The judgment appears to have been given for the right party, and will be affirmed. The other judges concur.