Jones v. Kansas City, Memphis & Birmingham Railroad

75 Miss. 913 | Miss. | 1898

Woods, C. J.,

delivered the opinion of the court.

There was no assignment of the claim sued on by Jones to Hargus, called the usee in the claim sued and in the proceedings. Hargus was not the assignee of the demand, but his agreement with Jones was only that he was to help Jones collect the claim, and J ones was to divide the recovery with him as compensation for his services. There is no agreement shown that Hargus was to incur any fees or costs in the effort to collect the claim. Jones, it appears, had become wearied and disheartened by repeated failures to collect his demand by his own unaided efforts, and he procured Hargus’ services to help in further efforts, and promised him one-half of the amount which might be recovered.

If the right to recover by the nominal plaintiff had been shown (as to which we express no opinion, inasmuch as that is not now before us), the case should have gone to the jury, and the usee named, and his rights, if he had any, should have been disregarded by the court. In Railroad v. Cantrell, 70 Miss., it was held that ‘ ‘ in actions for tort there cannot be a usee, and, if one is named, his rights must be disregarded, and the plaintiff will fail of recovery unless the right of the nominal plaintiff be proved. ” It is true, as argued by counsel for ap-pellee, that this is an action ex delicto, and that in tort there can be no usee, but that does not conclude the nominal plaintiff from recovery, if he proves his case, because he has improperly named some one as usee. The very case relied upon by counsel, the one we have just cited, holds that, in such case, the nominal plaintiff may recover, and the usee and his rights, if he have any, should be disregarded.

Reversed.