Grain v. Aldrich
Before: Sanderson
Synopsis
Assignment op Part of a Demand.—An assignment of part only of an entire demand is void at law, unless done with the consent of the debtor; hut such an assignment is valid in equity, without the consent of the debtor.
Idem—Recovery upon ir.—A recovery upon an assignment of part of a demand could not be had at law, under the practice at common law, without averring and proving that it was made with the consent of the defendant; but such an averment was immaterial in equity, and hence, under the code of this State, the complaint is not demurrable, for lack of facts, if it fails to contain such averment.
Idem. —In this State, the assignee of part of an entire demand may recover in his own name, without mating the holders of the remainder of the demand parties, if the assignment was made with the knowledge and consent of the debtor; but if not, then the other holders should he made parties, and if they arc not, tho complaint will be bad on demurrer, for want of parties.
Complaint under the Code.—A complaint is not demurrable on the score of a want of facts, if upon the facts stated the plaintiff is entitled to any relief, cither at law oi: in equity.
Complaint in an Action upon Assignment of Part of a Demand.—An averment in a complaint in an action upon an assignment of part of an entire demand in these words: “of which said assignment the defendants have had due notice,” is not an averment that the defendants assented to the assignment.
Idem.—If all the parties interested in tho demand, whore there has been an assignment of a part of it, are not made parties to the action, the objection, under the code, to tho complaint, is not that it lacks facts, hut that it lacks parties, and will be waived unless the complaint is demurred to on that ground.
Idem.—G. & M. sued A. W. & Co. upon an assignment of part of an entire demand against them, but did not aver that the assignment had been assented to by A. W. & Co., nor did they make the holders of the remainder of the demand parties to the action. A. W. & Co. demurred to the complaint for want of facts, but not for want of parties. Beld, that the demurrer, under tho code, was bad.
Idem.—The omission of the defendant to demur for want of parties, does not affect the power of the Court, under the 17th Section of the code, from directing other parties to be brought in, if it finds that it cannot completely determine the case in their absence.
Sanderson, J., delivered the opinion of the Court: The plaintiffs, as agents for the Bank of British North America, sue to recover of the defendants, formerly engaged in business in Honolulu, under the name of Aldrich, Walker 6 Co., the aggregate sum of $132,236 25.
The complaint contains three counts, in each of which the same claim is stated in different modes. The facts, however, are, that the defendants were indebted to the firm of Charles W. Brooks & Co. in the sum of $159,000 and upwards; that Brooks & Co. sold and assigned a part of said indebtedness, [519]to wit, the sum. of $44,078, to the plaintiffs, of which assignment the defendants had due notice.
To this complaint the defendants demur, upon the ground that it does not state facts sufficient to constitute a cause of action. The Court below sustained the demurrer, and, plaintiffs having declined to amend, final judgment passed for the defendants. Being dissatisfied with this result, the plaintiffs have brought the case here.
In support of the demurrer, it is argued on the part of the defendants that an assignment of a part only of an entire demand is void at laiv, unless made with the consent or ratification of the debtor; that is to say, that no action at law can be maintained upon such an assignment, unless it was made with the express consent of the debtor, or was subsequently duly ratified by him; and that this is an action at law, and there is no allegation that the assignment was made with the knowledge and consent of the debtors, or that they subsequently ratified it.
Leaving out of view the practice which has been adopted in this State, and which has abolished in the matter of procedure and form all distinctions between law and equity, the position taken by the defendants is, doubtless, impregnable. Indeed, the proposition is so well settled that it need only be stated. “At law, the debtor has a right to stand upon his contract,” said Mr. Justice Story, in Mandeville v. Welch, (5 Wheaton, 277.) To allow the creditor to split an entire claim into any number of fragments he may chose, would subject the debtor to conditions to which he never assented, and involve him in embarrassments and responsibilities which he never contemplated. It has always been considered that a plaintiff having an entire demand, cannot divide it into distinct parts and maintain separate actions upon each. If he undertakes such a course, a recovery in one action will bar the others. (Smith v. Jones, 15 John. 229; Willard v. Sperry, 16 Id. 121; Marziou v. Pioche, 8 Cal. 536; Herriter v. Porter, 23 Id. 385.) If he cannot do this himself, by parity of reason, he cannot by an assignment enable others to do it, either in his name, as at common law, or, under the rule in this State, in their own. This question, substantially, was
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