Kendig v. Giles

| Fla. | Jul 1, 1860

FORWARD, J.,

delivered the opinion of the Court.

It is contended by the plaintiff in error that it is immaterial for whose benefit or use the suit is brought, if the plaintiff has a legal right or cause of action. This leads us to determine who is the real plaintiff to this suit, and the nature of a suit brought for the use of another. In this suit, as in all suits brought for the use of another, the person in whose name the suit is brought for the use of another is but the nominal plaintiff — the real plaintiff is the person for whose use it is instituted; he brings the suit in the name of the nominal plaintiff, by virtue of a right to use his name, and if he recovers, the proceeds go to him — consequently he controls the suit and he may discharge it. The nominal plaintiff has no control or management of the suit.

It is clearly settled that any release by an assignor of his assignee’s claims is a nullity. 9 Cowen, 34; 3 Johnson, 426.

The real plaintiff in this suit being the said TI. N. Gould, the question arises under the facts disclosed in the declaration, whether the court avíII recognize in Gould, the present holder of said bill of sale containing said wai’ranty, the right to use the name of said Kendig, the nominal plaintiff. This can only be done where there is a legal assignment.

No privity or connexion is at law created betAveen the' said Kendig and said Gould, unless there is a legal assignment of said Avarrant so as to entitle the said Gould to hold the proceeds to liis- oavu use if he recovered.

It Avill be seen by reference to the warrant in said bill of sale, that it is not made to the assigns of said Kendig; it is a Avarranty to said Kendig, and being a personal warranty, does not pass AVith the slave. The said Kendig had in said bill of sale a title to said negro; in addition to the title he had the right to maintain an action for a breach of warranty for any undsoundness that may have existed at the time of the purchase from said Giles. Could he maleo an assignment of this right to maintain an action,that would be recognized in a court of law? He and Gorrld, his assignee, cannot both sue said Giles on his warranty. A mere right to sue is not assignable at common laAv, so as to vest the-' legal title in the assignee; nor is the right to sue on this warranty negotiable1 under the provisions of the statute of’ Ann, because the warranty is not made to the order or assigns of said Kendig or to bearer. It contains no negotiable words; 3 Kent, 77. This warranty not being assignable at common law nor under the statute of Ann, we are to look at the statue of this State, to see whether it is made assignable by its provisions. '-

Our statute of 1828, (see Thompson’s Digest, page 348) provides: “ It shall not be necessary for any person- who sues upon any bond, note, covenant, deed, bill of exchange or other writing, whereby money is promised or secured to be-paid, to prove the execution of said bond, note, covenant, deed, bill of exchange or other writing, unless the same shall be denied by the defendant under oath.”

“The assignment or endorsement of any of the fore-mentioned instruments of writing shall vest the assignee or endorsee thereof with the same rights, powers, and capacities as might have been possessed by the assignor or endorser.”

This right to maintain an action for a breach of warranty is neither, a bond, note, covenant, deed, bill of exchange nor other writing whereby money is promised to bepcdd; it gives only a right of action, which may or may not be maintained. In warranties- of this kind, damages constitute the gist of the action ;■ soundness or unsoundness is the issue. If the negro was unsound, the right of action accrued to the said Barnard Kendig; although he may have parted with the slave and the Title to the slave. 1 Henry Blackstone, 17; 1 Dunford & East., 136; 2 Dunford & East, 745; 1 Taunton, 368. In construing- this act we think it -was not the intention of the Legislature to include within its provisions such an instrument as this, and make it negotiable..

Such was the construction given by the Supreme Court of’Georgia, in the case of Broughton vs. Badgett, 1-Kelly’s-Béports, page 77,-to-a similar statute in.that State..

Whether the said Kendig intended to assign to the said Gould his right of action on said warranty or not, we do not decide, nor whether, if said intent should be established, a Court of Equity might not take jurisdiction in the name of the real party.

We hold that a court of law will not recognize the right of said Gould under this instrument of writing to use the name of said Barnard Kendig, therefore the court below committed no error in sustaining the demurrer to the declaration.

Per curiam. Bet the judgment be affirmed with costs.