43 P. 221 | Ariz. | 1896
Lead Opinion
This is an action on an account. Plaintiffs had sold and delivered merchandise to defendants, and on that account claimed a balance of $1,399.05. They also claim $1,058.80, balance due on an account due one Charles Noble, and $1,240.78, balance due on an account due J. Leberman & Co. The last two claims mentioned had been assigned to plaintiffs. Defendants, in their answer, deny plaintiffs’ right to maintain an action on the two assigned accounts, for the reason that said accounts had been transferred to plaintiffs for collection ; that as to said accounts- plaintiffs are not the real parties in interest, and cannot maintain the action on said accounts. The right of a party to maintain an action on an account which has been assigned to him for the purpose of collection only is the question presented by the record in this case. The Revised Statutes of Arizona of 1887 contain the following:—■
“Par. 680. Every action shall be prosecuted in the name of the real party in interest, except as otherwise prescribed.
The statute is plain that every action shall be prosecuted in the name of the real party in interest, and we think that it is equally clear that by the provisions of paragraph 681, supra, in the ease of an assignment of a thing in action (an account), the assignee is the real party in interest. Appellants contend that in this case, as the assignments, though complete in form, were made only for the purpose of authorizing the appellees to sue thereon, by establishing that fact, the right of action, as to said assigned accounts, could not be maintained. It appears to us that there do not remain any grounds for that contention, since the amendment to paragraph 680, enacted in 1893, and found on page 26 of the Session Laws of the seventeenth legislative assembly. Said amendment is as follows: “Every action shall be prosecuted in the name of the real party in interest, provided, an executor or administrator, or a trustee of an express trust, or a person expressly authorized by the statute, may sue without joining with him the person for whose benefit the action is brought. A person with whom or in whose name a contract for the benefit of another is made, and the assignee of any chose in action is a trustee of an express trust, within the meaning of this section. ’ ’ Though it was in fact understood by the parties that the beneficial interests to pass by the assignment were limited, still the plaintiffs, as holders of the legal title of said accounts, could sue for and recover the whole amount thereof. Gradwohl v. Harris, 29 Cal. 150; Allen v. Brown, 44 N. Y. 228; Meeker v. Claghorn, 44 N. Y. 349; Sheridan v. Mayor etc. of New York, 68 N. Y. 30; Eaton v. Alger, 47 N. Y. 345; Young v. Hudson, 99 Mo. 102, 12 S. W. 632.
The judgment of the district court is affirmed.
Baker, C. J., concurs.
Dissenting Opinion
dissenting.—I agree with my associates in the reasoning of the foregoing opinion, but do not think the evidence sufficiently proves the agency of De Long to bind Sroufe & Co., and therefore think the case should be reversed, and a new trial granted.
