20 Wis. 142 | Wis. | 1865
It was a settled rule before tbe enactment of the code, that in pleading a contract which tbe Statute of Frauds requires to be in writing, it was not necessary to allege tbe facts relied on to take the case out of the statute. The same rule still prevails. See Abbott’s Dig., Title, “Pleading under the Code of Procedure,” §921, and cases cited. Itis sufficient, on demurrer, to allege that a contract was made. Such an allegation implies that tbe contract is in writing, and valid under the statute. The complaint in this case avers a delivery of the
We are also of the opinion that the court was right upon another ground, that taken by the judge, viz., that the indebtedness of the defendant for the flour is explicitly admitted by the answer.
As to the stamp, the assignment having been executed before the passage of the act of Congress, approved June 80, 1864, (IT. S. St. at Large, 1863 — 4, ch. 172), the defect was cured by the first proviso of the 163d section of that act, which declares, “ that no instrument, document or paper made or issued prior to the passage of this act, without being duly stamped, or having thereon an adhesive stamp or stamps, to denote the duty imposed thereon, shall, for that cause, if the stamp or stamps required shall be subsequently affixed, be deemed invalid and of no effect.”
The only remaining question is as to the plaintiff s interest in the cause of action proved, and Ms right to sue in his own name alone. The statute is imperative, that every action must be prosecuted in the name of the real party in interest except as therein otherwise provided. R. S., ch. 122, sec. 12. The only exception claimed to be applicable here, is that found in section 14, that a trustee of an express trust may sue without joining with him the person for whose benefit the action is prosecuted. The proof is, that the plaintiff is not sole owner of the demand sued upon. It belongs to the firm of Robbins & Lewis, composed of the plaintiff, Ms brother, and one Lewis. The plaintiff and his brother have one half interest, and Lewis the other. The demand was transferred to the plaintiff alone by words of absolute assignment, no trust bemg expressed; but, as the plaintiff testifies, he holds it nevertheless in trust for the firm. It was received on account of a debt due the firm from Peet & Williams, the assignors. Upon these facts it seems to me the plaintiff cannot maintain the action. He is not the real party in interest, nor the trustee of an express trust, within the meaning of the statute. His brother and Lewis should have been joined as co-plaintiffs. He is not the trustee of an express trust, because no such trust appears from the assignment, and none is shown to exist between himself and his co-partners by virtue of any other instrument. In order to constitute a trustee of an express trust, as I understand the statute, there must be some express agreement to that effect, or something which in law is equivalent to such an agreement. The case of factors and mercantile agents may or may not constitute an exception, under the custom and usage of merchants. Grinnell v. Schmidt, 2 Sandf (S. C.), 706. But in every other case, the trust must,
Eor these reasons I think tbe judgment of tbe circuit court must be affirmed.
Tbe majority of tbe court are of tbe opinion tbat tbe only way tbe defect of parties plaintiff could have been taken advantage of was by demurrer or answer; and if not taken in tbat way tbe defect was waived. And it is immaterial whether tbe proof of tbe interest of other parties was objected to by tbe plaintiff at tbe time it was received or not. Our statute respecting appeals differs in tbis respect from tbat of New York. We agree with tbe Chief Justice in affirming tbe judgment, but not in all bis reasoning. We express no' opinion as to whether tbe plaintiff is tbe trustee of an express'
By the Gowrt. — The judgment is affirmed.