9 Utah 420 | Utah | 1894
On May 14, 1888, the defendants made and delivered to the plaintiff their promissory note for $3,500, with interest payable to the order of the plaintiff.
On January 5, 1890, James Anderson and Scott & Anderson made and delivered the following assignment' to G-eo. M. Scott and William H. Eemington:
“For value received we hereby sell, assign, transfer and make- over to George M. Scott and William EL Remington our several demands, accounts and claims against the Yosemite Mining'and Milling Company, a corporation, said demands being for the sum of thirty-six hundred and forty dollars ($3,640) and seventy-two and thirty-five one-hundredths ($72.35) with interest, and they, are authorized to sue for and collect same from said company.
“Signed. James Anderson.
“Scott & Anderson.”
In May, 1892, the plaintiff James Anderson commenced-suit against the defendants, upon said note, claiming no part had been paid except five hundred ($500) dollars.
The Yosemite Mining and Milling Company answered separately and set up the above assignment, claiming that-Scott & Remington were the owners of said note, and that, plaintiff was not such owner, and that they in connection-with Joseph E. Gallagher as trustee for them commenced suit against said company upon several matters including the note in question, and afterwards, on December 17, 1891, recovered judgment against said company in the-third district court upon said note and other demands,
G-lendinning and Eagan answered separately denying plaintiff’s ownership of the note, and also set up the same defense as this company defendant.
The case was tried before the court without a jury and the 'court found the facts set up in the several answers of the defendants to be true, and that plaintiffs had been paid five hundred dollars by Glendinning on April 22, 1890. The court further found that the assignment and transfer of said note to Scott & Remington was. made for the purpose of enabling them to comply with a certain •agreement between them and the defendant, the Yosemite Mining and Milling Company, whereby Scott and Remington had agreed to take up and procure the .assignment and transfer to them of said note and indebtedness with other, so as to allow Scott & Remington to foreclose and recover judgment for this indebtedness.
Plaintiff claims the court erred in admitting the assignment by plaintiff to Scott & Remington; that the court erred in admitting evidence of the defendant as to the same against the company and the assignment of it, and that the court erred in admitting in evidence the record and . judgment roll in the suit of Gallagher et al. v. The Yosemite Mining and Milling, Co., and that the evidence was insufficient to justify the findings, etc.
Upon an examination of the record, we find that the contention of the appellant cannot be sustained. It appears from the testimony of the plaintiff that at the time of the .assignment in question, plaintiff held no other claim against the defendant than the note in question. It also appears that plaintiff authorized the suit to be commenced thereon. The fact that plaintiff still retained the note in his possession, would not deprive the assignee of the right to sue thereon in accordance with the contract between the parties.
The assignment carried with it the note and debt evidenced thereby. Scott and Eemington were the real parties in interest and entitled to sue. The fact that they chose to sue but one of the three makers of the note, and did not make the sureties- parties to their action was within their discretionary power as owners of the note. The plaintiff could not maintain an action on the note he had assigned without a re-assignment to him.
Under the authority given the defendants would be protected in a payment of the note or by a recovery of a judgment thereon by the assignee, as against a suit or claim by the assignor against them. Wines v. Rio Grande Western Ry. Co., ante, 33 Pac. Rep. 10; Pomeroy Rem. and Remedial Rights, 2d ed., sec. 132; Davis v. St. Louis, 25 Fed. Rep. 786; Anderson v. Reardon, 48 N. W. Rep. 777; Sheridan v. Wagor, 68 N. Y. 31; Fuller v. Arnold, 98 Cal. 522; 2 C. L. secs. 3185, 3662, 3212.
We think the evidence objected to was properly admitted and that the evidence justified the findings .given.
Finding no error in the record the judgment of the trial court is affirmed with costs.