Goza v. Sanford

BOND, J. J. E. Goza, sued the defendant on his promissory note for $85.66, with eight per cent interest from date of December 4, 1893, and also on an account aggregating $72.85. The action was begun before a justice of the peace of Cape-Girardeau county, Missouri, on August 5, 1896. On the twenty-fourth day of August, 1896, J. E. Goza, filed in the justice’s court an assignment and transfer of his right, title and claim, and interest in said causes of action to J. Ella Goza, his wife, who was thereupon made party plaintiff in the action. On the same day defendant filed as a set-off a note made by J. E. Goza for $62.90, dated January 28, 1889, payable to H. W. Howard, administrator, Wigington & Howard, due one day after date, and an account for $25 in favor of one Mullens, both assigned to defendant. After a trial and judgment against him in the justice’s court the defendant appealed to the circuit court. The trial there resulted in a judgment in favor of J. E. Goza, the wife, against the defendant for $134.17, from which defendant appealed. [99] estopfbi.. [97] The plaintiff gave evidence that the money evidenced by the note executed by defendant to J. E. Goza was the proceeds of real estate which came to his wife from her father, and which had been invested for her benefit by an attorney, [98] who delivered it upon her written direction to her husband, and that he paid it out at the direction of defendant, in consideration of which defendant executed the aforesaid note, and that the item of $13.60 in plaintiff’s account also came from the same source; that he acted as the agent of his wife in these transactions. Both said note and account were admitted to be due by defendant in his written statement claiming’ a set-off in the justice’s court. When defendant offered the two set-offs pleaded by him on the trial in the circuit court, plaintiff objected to their competency and relevancy because it was not shown that defendant had acquired either of them when the present action was begun. This objection was sustained. Eor the plaintiff the court gave an instruction submitting to the jury the issue whether the note and account sued upon belonged to her, and whether they were still due. Defendant asked no instructions, and no other were given. Appellant complains of the substitution of the wife as a plaintiff in the action upon the filing by the husband of the assignment to her of his causes of action. There was no error in this ruling. The statute expressly authorizes the substitution of the transferee of a pending action as party plaintiff in the future conduct of a litigation. R. S. 1889, sec. 2204; Childs v. Thompson, 81 Mo. 333; Todd v. Crutsinger, 30 Mo. App. 145. The consideration for the transfer in the case at bar was well supported by the evidence.' It was competent for the husband to transfer the note payable to him and the account in his favor to his wife, and by such act to vest her with full title to both of these evidences of debt; henceforth she was authorized under the married woman’s act to enforce in a court of law the obligations of the maker of the note and the debtor in the account. R. S. 1889, sec. 6864. Hence there was no orror in the ruling under review. Neither was there any error in the exclusion of the set-offs claimed by defendant, for there is no evidence in the record that he acquired either of them until after he was sued in this action. Reppy v. Reppy, 46 Mo. 571; Todd v. Crutsinger, supra. As the [99] defendant was not harmed by the exclusion of his set-offs, and as he admitted the justice of both of the items upon which the jury returned a verdict, it is difficult to see how he could have been prejudiced by the rendition of the judgment in this case. Eor whether the assignment by the original plaintiff to his wife was sufficient to authorize her to become a party plaintiff, he, at least, would be estopped thereby from any further demand against defendant, and defendant upon payment of said judgment would be discharged from all obligation to any one. The judgment is manifestly for the right party, and will be affirmed. All concur.