111 Wis. 70 | Wis. | 1901
“ If, as between the assignor and assignee, the transfer is complete, so that the former is divested of all control and right to the cause of action, and the latter is entitled to control it and receive its fruits, the assignee is the real party in interest, whether the assignment was with or without consideration, and notwithstanding the assignee may have taken it subject to all equities betweeen the assignor and third parties.”
In a subsequent case (Sheridan v. New York, 68 N. Y. 30) the plaintiff sued on an assigned claim, and on the trial produced a written assignment, properly executed, in terms transferring absolutely, for a valuable consideration, the demand in suit. The trial court submitted to the jury the question of whether this was a sham transaction. The court disposed of the case in the following language:
“Precisely what the learned judge meant by a sham transaction, as applied to the transfer of the demand, is not very apparent; but I infer from this and other parts of the charge that he intended to charge that, although a legal title to the claim was transferred to the plaintiff and the as*73 signment was valid as against tbe assignee, yet, if the jury believed that the transaction was colorable (that is, that by any private or implied understanding the transfer was not intended as "bona fide, or an actual and real sale of the demand, as between the parties) the plaintiff could not recover. In this, with great respect, I think the learned judge erred. A plaintiff is the real party in interest, under the Code, if he has a valid transfer as against the assignor, and holds the legal title to the demand. The defendant has no legal interest to inquire further. A payment to or recovery by an assignee occupying this position is a protection to the defendant against any claim that can be made by the assignor.”
This case was cited with approval in Crowns v. Forest L. Co. 99 Wis. 103, and settles the question against the contention of the defendant. The plaintiffs produced formal written,/ assignments of the several claims sued upon, which were rightfully held, to carry tbe title to the demands to them. Even if the court had submitted the question to the jury, and they had found that the transfer was only colorable as between the parties, yet that would constitute no defense on the ground that plaintiffs were not the real parties in interest. Such an inquiry might become material if the rights of creditors were involved, or upon the right of interposing some defense or counterclaim supposed to be cut off by the assignment. Sheridan v. New York, supra. No such considerations were presented in this case, and the trial court was manifestly right in refusing to submit the matter to the jury.
By the Court.— The judgment is reversed, and the cause is remanded for a new trial. . ’