100 P.2d 401 | Wash. | 1940
Lead Opinion
The cause was tried to the court, which found that the Blaesing Granite Company made an equitable assignment of its account and claim against defendants to plaintiff K. Smith for collection, and that plaintiff was entitled to recovery on that assignment. Judgment was entered accordingly. Defendants appealed.
The several assignments of error present the sole question whether the burden of proving the assignment was sustained by respondent.
Herman Blaesing, Jr., called as a witness by respondent, testified that he was vice-president and treasurer of the Blaesing Granite Company, an Oregon corporation, and that the signature of H.J. Blaesing on the following blank assignment, which was admitted in evidence over appellants' objection, was that of his father, who was president of the corporation:
"Dated at Portland, Oregon, this 22nd day of June, 1938.
BLAESING GRANITE COMPANY, By H.J. Blaesing President."
Other than as recited above, the record — comments of the trial court in the memorandum decision are not evidence — is bare of anything even tending to prove the assignment by Blaesing Granite Company to respondent of its account against appellants. At the conclusion of the trial, appellants renewed their motion *322 for dismissal of the action on the ground of failure of proof of assignment to respondent.
The trial court expressed the view that, while the assignment did not disclose to whom it was made and there was no proof that the assignment was authorized by the proper corporate authority, under the above-detailed facts,
". . . equitable principles must control procedure even in a law action and that equitably there had been an assignment to the plaintiff even though her name was omitted from the blank and that it would be the height of inequity to sustain the objection and dismiss the action and that the technicality must yield to the substance."
[1] An alleged assignee without proof of assignment can not recover against obligor by whom assignment is denied. In an action by the assignee against the debtor, the plaintiff must prove the material allegations in his complaint which are put in issue by the answer of the debtor. To recover on an assignment of a chose in action, it is not only necessary that the plaintiff establish that there was a cause of action, but it is essential that plaintiff establish that the cause of action has been assigned to the plaintiff. In the case at bar, the respondent's recovery is dependent on an assignment — the fact of assignment was put in issue by appellants' denial that the account had been assigned — by Blaesing Granite Company to respondent. It devolved upon respondent to prove, — that burden the respondent did not sustain — as formally as any other material allegation, that the account had been assigned to respondent. 6 C.J.S. 1198.
We are not unmindful of the holding that there is a valid assignment in equity whenever the person to whom an obligation is due authorizes its payment to another, either for his own use or for that of some *323 other person, or authorizes anyone to receive or hold the moneys and to apply them to any specific purpose other than for the use and benefit of the assignor. 2 R.C.L. 615. However, it should be remembered that, where the fact of assignment is put in issue by the pleadings — as in the case at bar — proof of the assignment is essential to a recovery by the assignee. The burden of proof of the assignment is on the one claiming to be the assignee. While there are circumstances under which a presumption will exist that an assignment was intended solely from the nature of the transaction, the mere possession of a chose in action doesnot raise a presumption of an assignment to such holder. 6 C.J.S. 1199.
In Kindler Collins, Inc. v. Beck,
The only evidence in the record before us is that the president of the corporation alleged to have made the assignment to the respondent signed, as president of the assigning corporation, the assignment in blank. That is, the son of the president of the corporation testified that the signature as president on the assignment in blank was that of his father. There is no other evidence tending to sustain the controverted allegation that the Blaesing Granite Company made the assignment on which respondent seeks to recover. *324
To agree with the trial court "that it would be the height of inequity to sustain the objection and dismiss the action, and that the technicality must yield to the substance," we would have to indulge in speculation and violate the rules that the courts heretofore have uniformly followed respecting proof of assignment. In the case at bar there is no proof, there is no basis for presumption, of any assignment from the Blaesing Granite Company to respondent. It was incumbent upon respondent to establish her right to sue, and this necessitated proof of the assignment by which alone respondent had any such right. Respondent failed to sustain the burden of proof. To hold otherwise, would result, as aptly stated by the court in Messickv. Houx Bros., Inc.,
"When courts of appeal resort to psychological legerdemain to force a fact into a barren record it breaks down the law itself and can result in naught but disaster."
The observation in the opinion in Livieratos v. CommonwealthSecurity Co.,
The judgment is reversed, and the cause remanded with direction to the trial court to dismiss the action.
STEINERT, ROBINSON, SIMPSON, and JEFFERS, JJ., concur.
Dissenting Opinion
I think it at least prima facie appears that the president had authority to make the *325 assignment, and that the plaintiff had the right to maintain the action. I therefore dissent.
BLAKE, C.J., BEALS, and GERAGHTY, JJ., concur with MAIN, J.