Weir v. Anthony

35 Neb. 396 | Neb. | 1892

Norval, J.

This action was brought by W. S. Weir against S. J. Anthony in the county court of Clay epunty, upon a written contract of guaranty made by the defendant to recover the amount of three certain promissory notes executed by one William Watson, payable to the order of the Weir Plow Company, and transferred to the plaintiff.

The petition alleges, substantially, that William Watson, on the 7th day of September, 1886, executed and delivered to the Weir Plow Company his three promissory notes of that date, payable to its order; two for the sum of $132.41 each, with ten per cent interest from November 1,1886, due December 15, 1886, and January 15,1887, respectively, and the other note for the sum of $166.10; payable November 1, 1887, with interest at ten per cent from June 1, 1887; that no payments have been made upon said notes, except the sum of $26 on January 12,1887, $5 on January 29, 1887, and $53.95 on June 24, 1887. The petition further alleges: “That said notes were given for goods bought of said Weir Plow Company by Wm. Watson subsequent to the 20th day of January, 1886, and during that year; that on the said 20th day of January, 1886, said defendant executed and delivered to plaintiff his special promise in writing to answer for the debt of said Wm. Watson, as evidenced by the above promissory notes, in words and figures as follows:

“‘guaranty.

‘“In consideration of the credit which Weir Plow Company may extend to Wm. Watson, of Fairfield, Neb., upon the within contract, and of one dollar to me in hand paid by said Weir Plow Company, the receipt whereof is hereby acknowledged, I hereby guarantee to said Weir Plow Company the complete fulfillment of said contract upon the part of said Wm. Watson, and payment at maturity of all notes and accounts made by said Wm. Watson in pursuance of said contract, including also payment of all goods that said Wm. Watson may order of said Weir Plow Company subsequent to this date and during the year 1886. I further guarantee payment to said Weir Plow Company of all notes at maturity that may be taken by them in full or part payment of the indebtedness of said Wm. Watson, under this contract, and also payment of all notes taken by them in payment of any indebtedness of said Wm. Watson to said Weir Plow Company for implements ordered by him subsequent to this date and during the year 1886, whether said notes are the notes of Wm. Watson or other persons. I hereby waive all notices to me, as guarantor, of default in payment of any of said notes or accounts. (Signed) S. J. Anthony.’

“The plaintiff alleges that in consideration of said guarantee, and relying upon the same, the Weir Plow Company afterwards sold said Wm. Watson implements as per bills hereto attached marked Exhibits ‘A,’ ‘ B,’ and ‘C,’ and on September 7,1S86, took said Wm. Watson’s notes, as above mentioned, for balance due for said goods and implements so sold and delivered on the faith and credit of the said guarantee of defendant. When said notes became due they were duly presented for payment to Wm. Watson and refused, except as above set forth, and Mr. S. J. Anthony, the defendant, was then promptly requested to pay the same. No part of said notes have been paid and there is now due from the defendant to the plaintiff the sum of $600.

“The plaintiff further alleges that on the-day of -, 188-, the said Weir Plow Company, for valuable consideration, duly transferred and delivered to the plaintiff the above mentioned promissory notes and guaranty as follows:

“‘Without recourse pay to the order of W. S. Weir.

“‘Weir Plow Company,

“ ‘Per W. M. Golbroth,

“‘Ass’t Cashier.’ ”

To the petition the defendant filed a demurrer, alleging two grounds:

First — That the plaintiff had no legal capacity to sue.

Second — That the petition does not state facts sufficient to constitute a cause of action.

The demurrer was sustained by the county court and-the action dismissed. - Plaintiff prosecuted a. petition in error to the district court, where the decision of the county court was affirmed.

The only point presented for the consideration of this court is this: Is the contract of guaranty set out in the petition assignable, so as to vest the right to bring the action thereon in the name of the assignee?

It is argued by counsel for defendant that, as the guaranty sued on was made to the Weir Plow Company, the contract was'personal to the. party to whom it was made, and therefore it was neither negotiable nor assignable. At common law, a contract of guaranty could not be assigned, so as to enable the assignee to enforce the same in his own, name. But under our statute this rule is changed. Sections 29 and 30 of the Code of Civil Procedure are as follows:

“ Sec. 29. Every action must be prosecuted in the name of the real party in interest,” etc.

“Sec. 30. The assignee of a thing in action may maintain an action thereon in his own name and behalf without the name of the assignor.”

Under these provisions, where a contract of guaranty is transferred by assignment, the assignee is vested with power to sue and recover upon it in his own name. Plaintiff is the real party in interest and is the proper and only party who can maintain the suit. (Mills v. Murry, 1 Neb., 327; Hoagland v. Van Etten, 23 Id., 462; First Natl. Bank of Dubuque v. Carpenter, 41 Ia., 518; Lemmon v. Strong, 59 Conn., 448; Craig v. Parkis, 40 N. Y., 181; Stillman v. Northrup, 109 Id., 473; Everson v. Gere, 122 Id., 290; Waldron v. Harring, 28 Mich., 493.)

The authorities cited by counsel for defendant are not applicable, for the reason that they are from states having statutes unlike ours and where the common law rule as to the assignability of a contract of guaranty prevails. It follows that the demurrer to the petition should have been overruled. The judgment of the district court is reversed and the cause remanded for further proceedings.

Reversed and remanded.

The other judges concur.