140 Ill. 445 | Ill. | 1892
delivered the opinion of the Court s
In natural order, the first legal question presented for our decision is, did the circuit court err in refusing to hold as law applicable to the case, the proposition set out in the foregoing statement of facts. Appellant insists that the contract sued on could not be assigned so as to authorize the assignee to sue. in its own name in a court of law, and if it could, there is in this record no proof that it was assigned. By the express terms of the contract, as evidenced by said city ordinance, it was assignable. The obligation was not upon the St. Louis •company alone, with which the contract was originally made, ■but upon its “successors and assigns.” The agreement on the part of the city was not to pay that company only, but “its successors and assigns.” The contract was clearly intended to be assignable by the parties. Was it assigned? The proof shows that the land on which the engine house was built was •deeded by the St. Louis company to plaintiff, and that by resolutions of the directors of both companies the latter became the successor of the former. It can not be now said the proof of these facts was incompetent, because none of it was objected to upon the trial. Moreover, the declaration expressly avers that the said contract was transferred to the pilaintiff by the St. Louis company and notice of that fact given to the defendant, and these allegations are not denied by any plea. We think the title passed to the plaintiff, and that it could have maintained an action, in equity, in its own name, or at law in that of the assignor, for its use.
The only question remaining, raised by the proposition, is, could plaintiff maintain this action in its own name ? The general rule undoubtedly is, that the assignee of a chose in action can only maintain a suit at law in the name of the assignor, for his use. If, however, the debtor, after notice of the assignment, expressly or by implication agrees with the assignee to pay him the debt, the latter may sue in his own name. (Am. & Eng. Ency. of Law, 236.) That such is the rule where the assent is expressly given can not be questioned, and we think, on principle and authority, it should be held that such “assent may be inferred from the acts of the parties and the circumstances of the case. ” (2 Wharton on Contracts, 841.) In Barger v. Collins, 7 Harr. & J. 219, it is held that an assignee of a chose in action may sue in his own name, without showing an express promise by the debtor to pay him, citing authorities. Other authorities to the same effect might be cited.
There is no pretense that during the progress of the erection of the water-works the city authorities did not have notice of the assignment. After the work was, as plaintiff claimed, completed, the city council ordered a test to be made, at which the plaintiff was recognized as the contracting party. There is also evidence in the record showing that the city used the water-works, both before and after the test, by consent of the plaintiff. Aside from the fact that the contract sued on shows upon its face that both parties understood when it was entered into that it might be assigned, we think the dealings between the city authorities and the plaintiff, after the assignment was made, fully justified the circuit court in refusing to hold said proposition of law, on the ground that, with full, notice of the assignment, the city assented thereto.
It is next insisted that the circuit court erred in sustaining demurrers to each of the defendant’s special pleas. The record is somewhat confused, and it may well be doubted whether the ruling of the circuit court on those pleas is properly before us. There can, however, be no serious contention that either of those pleas presented a defense to the cause of action set up in the declaration. The ruling of the circuit and Appellate courts on the demurrers was clearly right, and in conformity with the decisions of this court. See opinion of Phillips, J., in 31 Ill. App. 338; East St. Louis v. East St. Louis Gas Light Co. 98 Ill. 415.
It is said the first of those pleas was not passed upon by the Appellate Court, and is not affected by the decision in the East St. Louis case, supra. It and the third plea are, in substance, the same. The last, clause of the first does not make it good, because unless an indebtedness in excess of five per cent of the taxable property has been created, no provision by levying a tax to pay it is necessary. The plea fails to show such indebtedness.
It is next insisted that the circuit court erred in overruling^ the defendant’s motion for leave to file the plea of former adjudication. We do not think so. It is conceded that it was' discretionary with the court to allow or refuse leave to file the plea at the time it was presented, but it is urged that to refuse it was such an abuse of that discretion as should reverse the judgment below. There was no arbitrary action of the court .on the motion, as contended by counsel for appellant. If the agreement insisted upon by the plaintiff in resistance of the leave in fact existed, it was clearly the duty of the court to refuse it. The manner in which that question was submitted to the court was doubtless unusual; but it was done without objection. Both parties seem to have assented to that method of presenting the issue, and each filed affidavits in support of its contention as to the facts. There was certainly enough in those filed on behalf of the plaintiff to justify the conclusion that the agreement was made, and that plaintiff had acted , upon it. Manifestly, the court so found, and it was therefore fully justifiable in refusing to allow the defendant to file the plea in violation of its stipulation. The order of May 1G, 1889, setting aside all former orders-entered'as to that plea, vacated the order allowing it to be filed. The court so treated it, and so did both parties. It also appears, as stated in the last opinion of the Appellate Court, by Green, J., that “the former recovery pleaded, was a judgment for costs against the "Water, Light and Power Company of St. Louis, in a suit brought by it for the use of appellee, against appellant, for the same causes of action sued for in the present case. But the record discloses the fact that long before and at the time the St. Louis company brought that suit, it had sold and conveyed the water-works plant, and assigned the contract and franchise to appellee and put it in possession of the entire .works, and had no right to recover, or maintain a suit for the recovery of the water rents, or any part "thereof, hence the ¡judgment pleaded might well have gone against the St. Louis company and yet plaintiff not be thereby estopped or barred of its right to sue for and recover upon the same causes of -action. If this is so, it follows the defense set up by that plea would have been no bar, and refusing permission to interpose worked no injury.”
We are satisfied that substantial justice is done between "these parties by the judgment of the circuit court, and that no .reversible error was committed upon the trial.
The judgment of the Appellate Court will be affirmed.
Judgment affirmed.
