Weed Sewing Mach. Co. v. Wicks

DILLON, Circuit Judge. I am inclined to the view that Bartram and not the corporate plaintiff, his principal, is the obligee in the bond, and for the purposes of this demurrer will concede such to be the case. The result of this concession is that by the principles of the common law, an action for the breach of the condition of the bond, which is under seal, could be brought only in the name of Bar-tram, although his principal might alone be interested in the recovery. It must also be conceded that under the federal constitution and legislation, the distinction between law and equity, and the corresponding remedies, is established, and remains in full force unaffected by the practice act of June 1, 1872. Robinson v. Campbell, 3 Wheat. [16 U. S.] 212; Bennett v. Butterworth, 11 How. [52 U. S.] 674; Thompson v. Railroad Cos., 6 Wall. [73 U. S.] 134. Indeed that enactment not only recognizes, but proceeds upon this distinction. It is also undoubtedly true, that under the provisions of the Missouri Code in respect to parties quoted .in the statement of the case, an action like the present might be brought in the proper court by Bartram in his own name although his principal would alone be interested in the recovery. But it is equally true (under the averment made in the petition to the effect that the sewing machine company is the sole and real party in interest and supplied the consideration for the debt sought to be enforced) that under the provision of the Missouri Code, the action, if brought in the stale court, might be maintained by the sewing machine company in its own name. Wag. St. p. 999, §§ 2, 3, and notes of cases. The present action being one at -law, the mode of pleading and procedure prescribed by the state statute is applicable to it. and the suit is Tvell brought, under the averments of the petition, in the name of the plaintiff as the real party in interest. This principle was distinctly decided by the supreme court prior to the act of 1872, in respect to cases removed from the state to the federal court. Thompson v. Railroad Cos., 6 Wall. [73 U. S.] 134. In the case cited, Mr. Justice Davis remarks: “The law of Ohio directs that all suits be brought in the name of the real party in interest. This constitutes a title to sue, when the suit is brought in the state court in conformity with it.” Since the act of 1872, at all events in a purely legal action, the real party in interest has a right to sue in federal courts, if the case is one which is otherwise within the jurisdiction of those courts, and there is no special statute of congress, making a different provision. If this view is correct, then this suit is well brought in the name of the plaintiffs, and this [575] is decisive of the question made by the defend-. ants, for it is well settled that it is the citizenship of the parties to the record that governs in determining the jurisdiction of the circuit court, not of persons interested in the controversy, but who are not parties. Irvine v. Lowry, 14 Pet. [39 U. S.] 293; Bonafee v. Williams, 3 How. [44 U. S.] 574; Osborn v. Bank of United States, 9 Wheat. [22 U. S.] 856; Davis v. Gray, 16 Wall. [83 U. S.] 203, 220; Coal Co. v. Blatchford, 11 Wall. [78 U. S.] 172. As the petition shows that the plaintiffs alone furnished the consideration for the debt or claim sought to be enforced, and that the agent. Bartram, had no interest therein, if the promise of the defendants, though made in form to Bartram, had not been contained in an instrument under seal, there is a line of strong adjudications which hold that plaintiffs might sue to enforce the promise without the aid of any statute. It is, however, unnecessary to consider the case in this view, as the state statute gives the plaintiffs the right, and the act of congress of June 1, 1872, makes the right equally available to them in the federal court. They are not the assignees of Bartram. and hence it is not necessary that the petition should show that Bartram’s -citizenship is such that he could have maintained the action if no assignment had been made. Judgment accordingly. As to real parties in interest, see Insurance Co. v. Railroad Co. [Case No. 96], See, also, Opdyke v. Pacific Railroad [Id. 10,546].