Wheatley v. Strobe

12 Cal. 92 | Cal. | 1859

Field, J.,

after stating the facts, delivered the opinion of the Court —Terry, C. J., and Baldwin, "J., concurring.

Upon the facts in this case the appellants make two points : First. That the verbal acceptance of Strobe was sufficient to render him liable to Howel upon the order of Wheatley; and, Second. If this be untenable, that the order operated as an equitable assignment of the demand against Strobe, which thus became subject to attachment as the property of Howel.

The first of these points cannot be sustained. The order possesses all the requisites of an inland bill of exchange. It contains a direction for the payment of money by one person to another, absolutely and at all events. As no time is specified, it is to be taken as payable at sight. No further particulars than these are. essential to constitute a bill of exchange. The insertion of the word “please” does not alter the character of the instrument. This is the usual term of civility, and does not necessarily imply that a favor is asked. Story on Bills, sec. 33 and notes; 3 Kent, 74.

The order being a bill of exchange, the written acceptance of Strobe was necessary to charge him as acceptor under the statute. His verbal acceptance was insufficient. Act concerning Bills of Echange, sec. 6. Upon the order, therefore, he is not liable.

But the second point is well taken. The order, though not available as a bill of exchange against Strobe for want of acceptance, operated as an equitable assignment of. the demand of Wheatley to Howel. It was given for an antecedent debt, and for the full amount of the demand against Strobe; the consideration was valuable, and there was no splitting of the amount due into distinct and different causes of action; and in such cases it is well settled that an order, whether accepted or not, operates as an assignment of the debt, or fund against which it is drawn.

The want of a written acceptance does not affect the right of Howel to the money due, but only the mode of enforcing it. With the acceptance he could have sustained an action upon the order; without it he ' must recover upon the original demand by force of the assignment. Under the old common law practice, the action could only be maintained in the name of the assignor for the benefit of the assignee, but under our system it may be brought in the name of the assignee as the party beneficially interested. Courts of law, equally with Courts of equity, gave effect to assignments, like the one under consideration, by controlling the proceeds of the judgments recovered for the benefit of the assignee. Mandeville v. Welch, 5 Wheat. 227; Corser v. Craig, 1 Wash. C. C. 427 ; Blin v. Prince, 20 Vt. 25 ; Wheeler v. Wheeler, 9 Cowen, 34; Nesmith v. Drum, 8 Seargt., & Watts, 9; Robins v. Bacon, 3 Greenl. 346 ; Adamson v. Robinson, 1 Pick. 461.

After the delivery and presentation of the order, the debt due by Strobe could not be reached on attachment issued by the creditors of Wheatley. As against any attempt by them to enforce its payment upon any such proceeding, the order would be an effectual protection; and we do not perceive why it should not equally avail as against the suit of the assignor himself, unless it is made to appear that such suit is prosecuted for the benefit of the assignee. Drake on Attach., chap. 37; Black v. Paul, 10 Mo. 103 ; Lovely v. Caldwell, 4 Ala. 684 ; Corser v. Craig, 1 Wash. C. C. 424.

In this State, all actions are required, with some few specified exceptions, to be brought in the name of the real party in interest, (Prac. Act, sec 4). In the present case, upon the facts alleged in the answer, and which are admitted by the demurrer to be true, it is clear that the plaintiff is not the real party in interest, and there is no allegation in the complaint that the suit is prosecuted for the benefit of Howel. A judgment recovered by Wheatley after the presentation of the order, without notice to the assignee, would be no protection to the defendant against a suit by the assignee for the same demand.

The position of the defendant is not unlike that of a party summoned as garnishee, after receiving notice of an assignment by his creditor of the demand; if he fails in answering to set up the assignment, and judgment in consequence passes against him as a debtor of the assignor, it will not afford protection against a suit by the assignee. Nugent v. Opdyke, 9 Robinson, 453 ; Crayton v. Clark, 11 Ala. 787; Foster v. White, 9 Porter, 221.

Upon the facts set u.p in the answer, we are of opinion that the prayer of the defendant should have been granted ; that he should have had leave to deposit the amount in suit in Court, and that process should have issued to bring in Howel, and that Wilcoxson & Co. should have been allowed to intervene.

The rights between the plaintiff and Howel to the demand due- by Strobe, should be first determined, and afterwards the claim asserted by the intervenors disposed of. This claim, of course, can only be a matter for consideration in case the money is adjudged to have been at the time of the alleged attachment the property of Howel. Van Buskirk, Adm. v. Roy, 8 How. Prac. 425.

Judgment reversed, and cause remanded for further proceedings.