74 Mo. 521 | Mo. | 1881
The amended petition, on which this cause-was tried below, alleged that in the months of November- and December, 1870, one E. B. Wallen cut and stacked along the line of defendant’s road, in Iron county, 700-double railroad cross-ties, of the value of fifty cents per tie, and the same number of single railroad ties, of the value of thirty-five cents per tie; that they were cut and' delivered in pursuance of an agreement between said Walien and one Dingle, who had a contract with defendant for-furnishing ties for defendant, and Dingle was to pay said Walien for said ties the prices above stated, on delivery, but that after said agreement, Dingle broke the agreement and left the county; that afterward defendant, during the years 1871 and 1872, took said ties and used them; that before defendant took the ties, or about that time, Wallen, for good and sufficient consideration, transferred and assigned the ties, and all his right, title and claim to said ties, and his claim against defendant for taking and using them, to C. C. Grider, (who Avas the original plaintiff in.
If the seizure and conversion of the ties by defendant occurred before the assignment by Wallen to Grider, Wallen had nothing to assign but a right of action against the company for a trespass. There were no contract relations as to this transaction between the defendant and Wallen. If the seizure of the ties by the defendant occurred after the transfer and delivery of the ties to Grider, but before he made the transfer alleged to II. Clay Wallen, then he had nothing to assign but a right of action against the defendant for trespass. While it is not certain whether the pleader intended to charge that the transfer by Wallen toGrider was anterior or subsequent to the seizure and conversion of the ties by defendant, it is clearly alleged that such seizure and conversion occurred prior to the transfer and assignment made by Grider to H. Clay Wallen, and section 3462, Revised Statutes, forbids “ the assignment of a thing in action not arising out of contract.” While the original owner might have waived the tort, and brought an action ex contractu for the value of the ties, it does not follow that he could have assigned his right of action against the trespasser to a third person. While he might he allowed to waive the trespass, still, the thing in action did not arise out of a contract. No cause of action, therefore, was stated in the petition, and the judgment is reversed.