11 Ind. 199 | Ind. | 1858
This was an action by the appellees, who were the plaintiffs, against Mewherter. The following is
After this, in September, 1855, McEwen, by indorsement, assigned his contract with defendant to the plaintiffs; and afterwards in October in the same year, Morgan and Parkhurst, by indorsement, assigned to the plaintiffs the contract by them entered into with the defendant.
It is averred that for these assignments the plaintiffs paid 4,000 dollars; that they gave the defendant due notice that they held the contracts, designated their own pork-packing house in Madison as the place where said hogs should be delivered, and so notified the defendant; but that he failed to deliver the hogs, or any part of them, though the plaintiffs were, at all times, ready to pay for the hogs on delivery, &c.
The defendant demurred, upon the alleged ground that the complaint does not state facts sufficient to constitute a cause of action; but his demurrer was overruled.
Are the contracts set forth in the complaint assignable,
“ That all promissory notes, bills of exchange, or other instruments of writing, signed by any person who promises to pay money, or acknowledges money to be due, or for the delivery of any specific article, or to convey property, or perform any stipulation therein mentioned, shall be negotiable by indorsement thereon, &c.
“ The assignee of any such instrument may, in his own name, recover against the person who made the same”(1) .
The appellant insists that under the act to which we have referred, the assignments cannot be sustained, because promissory notes and bills of exchange are alone embraced in the title of that act; that its provisions, so far as they relate to “other instruments of writing,” are not within the subject of its title, and consequently not within the requirements of § 19, art. 4, of the constitution. That section declares that “ every act shall embrace but one subject, and matter properly connected therewith, which subject shall be expressed in the title. But if any subject shall be embraced in the act, which shall not be expressed in the title, such act shall be void only as to so much thereof as shall not be expressed in the title.” We have seen that the title to the act under consideration is limited to promissory notes and bills of exchange. Its language is very explicit, and we know of no rule of construction by which it can be so extended as to embrace instruments in writing other than those which it expressly names. Hence, the title to which we have referred, cannot, in view of the constitutional provision above quoted, be held to embrace the subject of the contracts in suit; and the act itself, so far as it may, in terms, authorize their assignment, is plainly inoperative. There are, however, other provisions of the code, which, it is contended, sustains the action in the names of the plaintiffs below. Section 3 of the act concerning civil procedure, says: “ Every action must be prosecuted in the name of the real party in inter
Another ground is assumed against the ruling of the Court upon the demurrer. It is said that the assignors, though they might legally make the assignments, could not, without the assent of the defendant, authorize the assignees to designate the place of delivery. We think otherwise. The sale and delivery of the contracts to them was, in effect, an authority to the assignees to perform all the stipulations which, by the contracts, the assignors were bound to fulfill. Indeed, it could make no material difference to the defendant, who pointed out the place of the delivery of the hogs, provided it was done by the party who, upon such delivery, was entitled to receive them as his property.
Per Curiam — The judgment is affirmed, with 1 per cent, damages and costs.
1 R. S. p. 378, §§ 1, 2.