34 Mont. 121 | Mont. | 1906
delivered the opinion of the court.
The facts disclosed by the record are that John H. Devlin was the owner of a certain horse and let it to the plaintiff Tanner, who was a livery-stable keeper at Conrad, Teton county, for use in his livery business. The defendant Bowen hired a team and buggy from Tanner on December 1, 1904, to drive to Chouteau, and the Devlin horse and another were furnished to him by Tanner. Bowen made the trip with the team to Chouteau, and on the following morning it was ascertained that the Devlin horse had died. Devlin asserted a claim for the value of the horse against both Tanner and Bowen and demanded a settlement for the same from each. Upon the trial it was made to appear that Tanner admitted Devlin’s claim, acknowledged his own liability, paid to Devlin the value of the horse in satisfaction of Devlin’s claim, took an assignment of Devlin’s cause of action as against Bowen, and as such assignee brought this action to recover from Bowen the value of the horse, alleging in his complaint that the death of the horse was caused by negligence on the part of Bowen. The answer denies any negligence on Bowen’s part. A verdict was returned in favor of the plaintiff, a judgment entered thereon, and from the judgment and an order denying him a new trial, the defendant appealed.
The only error assigned in the brief of appellant is that the court erred in refusing to instruct the jury to return a verdict for the defendant as requested by him. In discussing this alleged error, counsel for appellant makes three distinct contentions, only one of which it will be necessary to consider.
It is said that plaintiff Tanner, having paid to Devlin the amount of Devlin’s claim in satisfaction of the same, thereby discharged Bowen from liability. As to whether Tanner was in fact liable might be a question, but this liability was admitted. The payment by Tanner to Devlin and the attempted assign
If Devlin, instead of merely presenting his demand against Tanner and Bowen separately, had sued each, as he might have done, and had recovered a judgment against each, and if Tanner had then paid the judgment against himself and had taken an assignment from Devlin of the judgment against. Bowen, the situation would not have been different from that which is presented by this record, and under those circumstances it is quite clear that the judgment against Bowen could not have been enforced.
A case directly in point is Gross v. Pennsylvania etc. R. Co., 47 N. Y. St. Rep. 374, 20 N. Y. Supp. 28: The plaintiff recovered separate judgments against the Pennsylvania etc. Railroad Company and the Central New England etc. Railroad Company for an injury caused by the negligent acts of those companies. The New England company paid the judgment against it and took an assignment of the judgment against the Pennsylvania company. The Pennsylvania company then moved the court to cancel the judgment against it. In reversing the trial court for refusing this motion, the supreme court of New York said: “It is claimed by the assignee of the judgment that, as between it and the defendant (the Pennsylvania company), it was the
Section 571 of the Code of Civil Procedure provides: “In the case of an assignment of a thing in action, the action by the assignee is without prejudice to any setoff or other defense existing at the time of, or before, notice of the assignment,” etc. If, then, when Devlin assigned his pretended cause of action against Bowen to Tanner, he (Devlin) had been paid by Tanner for all damages sustained by him, under the circumstances of this case the defense of payment or satisfaction could have been interposed by Bowen, and when these facts were developed upon the trial, the defendant’s request for an instruction for a verdict in his favor should have been granted. Devlin having been paid and satisfied by Tanner, did not have any cause of action against Bowen which he could assert in court himself, and, of course, if he could not assert it, his assignee could not.
The judgment and order are reversed, and the cause remanded for further proceedings.
Reversed and remanded.
