47 Ark. 541 | Ark. | 1886
This action was instituted before a justice of the peace to recover upon eighteen road-master’s checks, as they are called in the record, and a number of memoranda of accounts delivered by the company’s section foremen to laborers employed upon their road, certifying to the road-master the amount due the several laborers for services. All are filled in on printed forms furnished by the company for the purpose. Those of the same form differ from each other only in the date and amount of the account and the person to be paid. The following is a sample of the first form0 viz.:
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And the second runs in this wise :
Form 403.
St. Louis, Iron Mountain & Southern Railway Co.
No. 22. Certificate of Time Worked.
August 31, 1882.
To Pat McGrury, Division Road Master.
I certify that Tom Cross has worked sixteen and one-half days as laborer on Section No. 1x3, in month of August, at $4 per day. _____ $66 00
And owes board, etc. - - - - 48 73
Balance due. - - - - $17 27
Geo. M. Wright,
Foreman Section No. 113.
Take Notice.
This certificate will not be paid. It is given to be exchanged for Road Master’s Time Check in favor of the person to whom this certificate is issued.
The company denied that it was indebted upon the accounts ; (2), pleaded non est factum, and (3), insisted upon bringing in the assignors of the accounts as parties to the action.
A demurrer was sustained to the last paragraph of the answer.
Upon the trial it was proved that the section foreman was •authorized by the company to give laborers under his control at stated periods a statement of the amount that he ascertained to be due them for services rendered, in accordance with the printed form furnished him by the company for the purpose. This statement was intended to be presented to the road-master — the section foremen’s superior officer — who had authority to finally audit the accounts and put them in shape for payment by the company’s paymaster. This he did by the use of the printed form designated as the road-master’s time check. The ■checks in suit were issued in this way, and were assigned without written indorsement to the appellees.
The auditing of the account by the authorized agent of the company, and the’ acceptance of the statement by the laborer, constituted, in each case, an account stated, called in the old law insimul computassent. A balance being thus admitted by the company, a promise to pay it is implied, and upon this promise an action may be maintained without reference to the original items of the account. Laycock v. Pickels, 116 Eng. Com. Law (4 B. & S.), 496; Chace v. Trafford, 116 Mass., 529; Holmes v. Drake, 1 Johns, *34.
The acknowledgment of this indebtedness being signed by •an agent of the company having authority to do so, the statement becomes the evidence of an admission in writing of the •debt, and is assignable within the meaning of the statute making “ all agreements and contracts in writing for the payment of money” assignable. Mansf. Dig., sec. 473; Jacks v. Nelson & Hanks, 34 Ark., 531. As the agreement is the subject of assignment under the statute and the appellees are the real parties in interest, their assignors were not indispensable parties to the litigation. Mansf. Dig., sec. 4933-4; Heartman v. Franks, 36 Ark., 501. And the fact that there was no written assignment does not affect the practice. Heartman v. Franks, supra.
But this reasoning cannot apply to the foremen’s memoranda of indebtedness.- There is no evidence that any section foreman had authority to finally state accounts between the company and its laborers, and it is evident from the forms used by them, and put in evidence in this case, that they were intended only as memoranda or a means of information to the road-master, who alone was authorized to finally state the accounts. The implied promise to pay the balance struck that is raised from a mutual settlement of accounts is expressly repelled by the notice appended to the statement. The only object of the foreman’s certificate is there expressly stated to be for presentation to the ‘superior officer who has authority to bind the company by his action in the matter.
The foreman’s certificate cannot then be said to be an account stated and signed by the party to be charged. The appelleés are, however, the assignees of whatever amounts are due upon these open accounts and are entitled to collect them by suit in their own name. But the accounts are not contracts or agreements in writing for the payment of money or property, and are not therefore assignable so as to permit the assignee to bring his action upon them without the appearance of the assignor in some form in the action so that the judgment will bind him and protect the party to be charged. It is difficult to give a reason for dispensing with the presence of the assignor when suit is brought upon a non-negotiable instrument assigned by delivery merely, that does not. apply with equal force to a suit upon an open account, but the statute makes a distinction and the courts are not at liberty to disregard its peremptory terms. “Where the assignment of a thing in action is not authorized by statute, the ' assignor must be a party as plaintiff or defendant.”, Mansf. Dig., sec. 4934. The defect as to parties was aptly made and the court erred in disregarding this provision of the statute. Hicks v. Doty, 4 Bush. (Ky.), 420.
In the outset the plaintiff was described in the short statement filed with the justice of the peace as the “Camden Bank” without any allegation as to incorporation or partnership. After objection had been made upon this score by the company in the circuit court, an amendment was allowed, showing that the Camden Bank was the firm name under which C. N. Rix and John R. Rowe were transacting business, and it is argued that this was a substitution of new parties plaintiff within the inhibition of the case of State v. Rottaken, 34 Ark., 144. But there was in fact no substitution of parties. The amendment only made specific what was not apparent before, and it is certain from the record that the company was not prejudiced thereby. It is only for an error prejudicial to an appellant that a judgment is reversed.
So much of the judgment as is based upon the road-master’s time checks,with interest from their respective dates, is affirmed; as to the residue, it is reversed and the cause remanded for further proceedings.
