148 Mich. 224 | Mich. | 1907
This case was commenced by declaration, filed in the office of the clerk of the circuit court for Chippewa county. The declaration was in assumpsit, and counted specially upon a contract for personal services performed by John N. Goltra for the defendant corporation for a period of 25 months succeeding the date of the
The plaintiff contends that the record does not sufficiently show that the John N. Goltra who was served is the same John N. Goltra who assigned the claim sued upon. We think, however, that the identity is prima facie established bytheidentity of names 6 Enc. Evidence, p. 913. John N. Goltra was an officer of the company upon whom service could be made under the statute. But it is established by authority — if authority for a rule so manifestly just were needed — that even though a person is within the terms of a statute, if his relation to the plaintiff or the claim in suit is such as to make it to his interest to suppress the fact of service, such service is unauthorized. Buck v. Manufacturing Co., 4 Allen (Mass.), 357; St. Louis, etc., Coal & Mining Co. v. Edwards, 103 Ill. 472.
It is insisted, however, that, as the claim of Goltra had been assigned before service was made upon him, he was at the time of service disinterested. There is nothing of record, except the statement that the account was assigned, to show the nature of the contract of assignment. We think that in such case there is a prima facie presumption that there was an implied warranty that a chose in action
It follows that Goltra had an interest in the claim in suit adverse to the defendant, and that service upon him was unauthorized. See White House Mountain Gold Mining Co. v. Powell, 30 Colo. 397.
The judgment is reversed, with costs.
