Snider v. Adams Express Co.

| Mo. | Apr 15, 1883

Sherwood, J.

The controlling question in this case is, whether the plaintiff is the proper party to sue, the answer denying that he is the proper party.

It is quite clear from the testimony, that the plaintiff was acting as the agent of his sister, Louisa J. Snider, in collecting and forwarding the money arising from the sale of her interest in the land. The contract with the defendant company,-for the transmission of the money, for the loss of which suit is now brought, was made by plaintiff, in his own name, without mention of any one as beneficiary of such contract. If so, then it was competent for the agent, with whom the contract was actually made, to sue in his own name, or for his undisclosed principal, with whom in point of law the contract was made, to sue in her own name. Cothay v. Fennell, 10 B. & C. 671; s. c., 21 E. C. L. 146; Story on Agency, §§ 160, 270, and cases cited; Ferris v. Thaw, 72 Mo. 446" court="Mo." date_filed="1880-10-15" href="https://app.midpage.ai/document/ferris-v-thaw-8006629?utm_source=webapp" opinion_id="8006629">72 Mo. 446. In Blanchard v. Page, 8 Gray 281, the same view as that just announced is stated, and it is there held after an extensive and elaborate review of the authorities, by Shaw, C. J., that a consignor was the proper party to sue, though having neither a general or special property in the goods.

But it is urged that under the code the action must be “prosecuted in the name of the real party in interest.” R. S. 1879, § 3462. But there are exceptions to this rule, expressly made in the section quoted, and set forth in the section following. Among those exceptions is that of a trustee of an express trust, who may sue in his own name, without joining with him the person for whose benefit the suit is prosecuted. In the language of the section referred to, “A trustee of an express trust, within the meaning of this section, shall be construed to include a person with whom, or in whose name, a contract is made for the benefit of another.”

It is claimed by counsel for defendant that there is no express trust in the case, because such trust must point out with precision the subject, the persons and the purposes of the trust; cannot be proved by parol, and can only be manifested or proved by some writing. Whatever of truth there may be in this position regarding trusts as to realty, it is not true regarding personal property; for such property is not within the terms of the statute, and such trusts, consequently, may be declared and proved by parol. The point has been so decided inferentially in England, and directly decided in this way in this country. 1 Perry on Trusts, § 86, and cases cited.

But we need not search the text books in the endeavor to maintain in the present instance that the plaintiff' is the trustee of an express trust, since, under the terms of the statute, the circumstances of this case endow him with all the attributes pertaining to that character : (1) He is the person with whom, and in whose name, the contract now in suit was made. (2) He made the contract for the benefit of another, as shown by the evidence adduced.

It was held at an early day in this State, that a party to whom a note had been assigned merely for the purpose of collection, was the “ real party in interest,” within the meaning of the statute; that the assignment created in the assignee the legal interest and thereby he became the proper party to sue. Webb v. Morgan, 14 Mo. 429. This ruling was followed in the similar case of Beattie v. Lett, 28 Mo. 596" court="Mo." date_filed="1859-07-15" href="https://app.midpage.ai/document/beattie-v-lett-8000641?utm_source=webapp" opinion_id="8000641">28 Mo. 596, where the one just mentioned was approvingly cited and followed, and the remark made that the assignees had the right to maintain an action on the note in their own names, “ because they were the trustees of an express trust, and had the legal title to the note.” So, also, in Simmons v. Belt, 35 Mo. 461" court="Mo." date_filed="1865-03-15" href="https://app.midpage.ai/document/simmons-v-belt-8001640?utm_source=webapp" opinion_id="8001640">35 Mo. 461, in similar circumstances, the above case was cited with approbation ; and in Nicolay v. Fritschle, 40 Mo. 67" court="Mo." date_filed="1867-03-15" href="https://app.midpage.ai/document/murphy-v-bottomer-8002155?utm_source=webapp" opinion_id="8002155">40 Mo. 67, where it was held that though the sum mentioned in the note was not due the plaintiff, yet that he being the payee mentioned therein ; having possession of the notes and the legal title thereto, that he had such an interest as authorized him to sue; that if the notes were impressed with a trust in his hands, that trust could subsequently be asserted; that the fact that such a trust existed constituted no defense to the action, and that a judgment was properly rendered as if for want of an answer, where the answer set up the facts aforesaid.

Now, if a contract originally made in the name of another, by an assignment thereof, which confers no beneficial interest — which makes the party to whom made the mere naked depository of the legal title — can endow the assignee with rights as the real party in interest — can clothe him with the attributes of a trustee of an express trust— assuredly a party with whom, and in whose name the contract was originally made, for the benefit of another, should encounter no legal obstacle in maintaining an action m his own name on the contract thus made. And so the point has been ruled; as in the case where a written contract was made with an administrator of an estate, and upon his resignation as such, action being brought by the administrator de bonis non, it was ruled that under the new code of procedure, the contract, if made with the original administrator for the benefit of the estate, he, as the trustee of an express trust, was the proper party to sue. Harney v. Dutcher, 15 Mo. 89" court="Mo." date_filed="1851-10-15" href="https://app.midpage.ai/document/harney-v-dutcher-7998676?utm_source=webapp" opinion_id="7998676">15 Mo. 89. And in Rogers v. Gosnell, 51 Mo. 466" court="Mo." date_filed="1873-01-15" href="https://app.midpage.ai/document/rogers-v-gosnell-8003870?utm_source=webapp" opinion_id="8003870">51 Mo. 466, it was held, that under the statute the party in whose name a contract was made, for the benefit of another, might maintain action upon it, being the trustee of an express trust, and that the beneficiary might, also, do the like, as a recovery by either would be a bar to another action by the other. See also, Bliss on Code Plead., §§ 45, 46.

It only remains to say that the plaintiff can maintain his action. Therefore, judgment reversed and cause remanded.

All concur.