Nixon v. Dillard

73 Miss. 803 | Miss. | 1896

Lead Opinion

Cooper, C. J.,

delivered the opinion of the court.

While under our laws amendments to the pleadings are liberally allowed, the insuperable obstacle to the appellants’ success is that, throughout the proceedings in the court below, they pleaded in reference to a right of action the legal title to which was in Nixon, and proved one the legal title to which was in Clark, Hood & Co. The original declaration was by Nixon, setting up a right of recovery in himself; it was the ordinary count for goods sold and delivered by the plaintiff to the defendant. The amended declaration was in the name of Nixon, for the use of Clark, Hood & Co., and it set up a right of action in Clark, Hood & Co., arising from a contract of novation, by which, by agreement of all the parties, Dillard & Johnson, who were indebted to Nixon, agreed to pay what they owed him to Clark, Hood & Co., to whom Nixon was indebted, and Clark, Hood & Co. released Nixon and agreed to accept the promise of Dillard & Johnson. When this contract was made, Nixon disappeared from the scene, and no longer had any right, legal or equitable, to the cause of action; that was vested in Clark, Hood & Co., who should have sued upon it in their own name. But the evidence did not correspond with the pleadings as amended, for it showed that Dillard & Johnson had never at any time been indebted to Nixon. They agreed to buy certain machinery owned by Nixon, on which Clark, Hood & Co. had a mortgage, to secure, a debt due to them by him, and it was agreed between all the parties that Nixon should sell the machinery to Dillard & Johnson, who were to pay the purchase money to Clark, Hood & Co., and, in consideration of their promise, Clark, Hood & Co. discharged their claim against Nixon. So that, by the very terms of their original contract, Dillard & Johnson promised Clark, Hood & Co. to pay them the money; they made no promise, and came under no obligation whatever to Nixon. Whether, therefore, the facts were as stated in the declaration, or as proved, the legal relation between Nixon and all the other parties was terminated. Clark on Contracts, p. 614, note 19.

One who has not the legal title to a chose in action cannot maintain a suit in his own name for the use of the holder of the legal title. Beck v. Rosser, 68 Miss., 72.

The jtidgment is affirmed.

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Dissenting Opinion

Whitfield, J.,

dissenting.

The opinion of the court not only stands isolatedly upon the most barren of technicalities, but mistakes the record. The suit was originally in the name of Nixon alone. At the July term, 1893, leave was granted plaintiff to amend his declaration by suing in the name of E. B. Nixon ‘ ‘ for the use of Clark, Hood & Co.” But this leave was not acted on, and no amended declaration, conforming to this leave, was filed. At the June term, 1895 (some two years later), an amended declaration was filed, not in conformity with the leave obtained two years before, by E. B. Nixon, as nominal plaintiff, for the use of Clark, Hood & Co., but making Clark, Hood & Co., manifestly, the plaintiffs. This declaration recites that “said usees, Clark, Hood & Co., by leave of the court first had and obtained, would show to the court as follows.” It then proceeds to state the facts of the case, whereby the defendants became liable to pay not Nixon, but Clark, Hood & Co., and concludes with this prayer for judgment: “Whereby, and in consideration thereof, the said defendants became bound and liable to pay said sum to ” — whom ? E. B. Nixon, for the use of Clark, Hood & Co.? Not at all; but “to the said Clark, Hood & Co., whereupon the plaintiffs [in the plural— Clark, Hood & Co., not Nixon] sue and demand judgment,” etc. Nowhere in this declaration is it stated that “E. B. Nixon sues for the use of Clark, Hood & Co.” There is no statement that the debt was due to “Nixon, for the use of Clark, blood & Co.,” and no such prayer for judgment. Nixon’s name appears nowhere in the declaration, except in the statement of the facts out of which the cause of action arose. The word “usees,” standing thus unsupported, surely ought not to overcome the plain allegations whereby Clark, Hood & Co. sue for that firm. It amounts to nothing that the pleas are captioned “Nixon, for the use of Glarh, Hood dé God’’ The caption of a plea does not determine the character in which a plaintiff sues. Besides, if such an inconclusive thing as the caption of a plea is to be looked to, it is more than counterbalanced by the facts that the case is captioned in the special bill of exceptions, “Clark, Hood & Co. v. Dillard & Johnson; ” the depositions are captioned, “Clark, Hood & Co. v. Dillard & Johnson; ” the verdict of the jury recites that they found “for the plaintiffs, Clark, Hood & Co.; ” and the judgment of the court is that “Clark, Hood & Co., plaintiffs, do have and recover,” etc. — all which things clearly indicate that, practically and substantially, the case was treated as one wherein Clark, Hood & Co. was the plaintiff firm.

Blair <& Anderson and Brame <& Alexander, for the appellants,

Filed a suggestion of error, in which it was urged that the record showed that Clark, Hood & Co. were the real plaintiffs, and that defendants had interposed no objection to their being so treated in the court below. It was also contended that the variance commented on in the opinion of the court, was not material, inasmuch as the defendants were not misled to their prejudice. Citing, code 1892, § 718; Carter v. Preston, 51 Miss., 423; Ware v. McQuillan, 54/5., 703; Greers. Bush, 57 lb., 575; Fulcord v. Hamberlin, 4 Smed. & M., 649, 650; Fairchild v. Bank, 5 How., 597; Stier v. Sur get, 10 Smed. & M., 154; Kingkendall v. Perry, 25 Miss., 228; Newells. Newell, 34 lb., 385; Coor v. Grace, 10 Smed. & M., 434..

Now, if the opinion of the majority of the court is to stand, then Clark, Hood & Co. are now barred and remediless, and yet it is as clear as noonday that the very justice and right of the case is with Clark, Hood & Co., and to hold otherwise is to sacrifice justice and right, not to a declaration drawn with technical accuracy even — in the name of Nixon, for the use of Clark, Hood & Co. — but to a single word “usees,” which is thus vitalized into a potency outweighing the plain allegations of the declaration, the manifest course of the trial below and the right and truth of the case. “Usees” in this declaration standing alone, isolated from all the words good technical pleading made necessary, in order to constitute this a suit by Nixon, for the use of Clark, Hood & Co. — “usees” alone accomplishes this complete defeat of justice, in this day of enlightened administration of substantial justice. I dissent emphatically from this judgment.

Suggestion of error overruled.