Ford v. Bushard

California Supreme Court Mar 12, 1897 No. L. A. No. 169Published

Before: Searls

AI Brief

AI-generated · verify before citing

Holding. When a plaintiff is substituted as an assignee of a cause of action and the defendant denies the assignment in their answer, the assignee must prove the assignment at trial to recover.

Issues

Whether a substituted plaintiff who claims interest via assignment must prove that assignment at trial when it is denied by the defendant.

Disposition. reversed

Quotations verified verbatim against the opinion

“In case of an assignment the supplemental complaint should set out such assignment, -which is an issuable fact, and, if denied, its proof in such a case, as in all cases of assignment, is vital to a recovery.”

“The issues in a case are not to be tried upon affidavit, but by such evidence as the law recognizes in open court.”

“For the total failure of testimony showing an assignment, the judgment and order should be reversed”

Synopsis

Sale of Orange Trees—Action for Breach of Contract—Assignment Pendente Lite — Substitution of Assignee — Supplemental Complaint—Denial—Proof of Assignment.—Where after the bringing of an action for damage for breach of a contract for the sale and delivery of particular kinds of orange trees, an assignment was made by the plaintiff to his wife of all his right and interest in the contract, just prior to plaintiff’s decease, and the assignee having been substituted as such, and not as the personal representative of the deceased, filed a supplemental complaint by leave of the court, alleging the assignment, and the death of the plaintiff, the defendant has the right specifically to deny the allegations of the supplemental complaint, and the assignee cannot recover, as against such denial, without proof of the assignment.

Id. — Ex parte Substitution—Presumption upon Appeal — Answer — Waiver.—Where the record upon appeal is silent as to whether the substitution of the assignee was or was not ex parte, it will be presumed on appeal in favor of the regularity of the proceeding that notice was given; but if the order was made ex parte, the answer to the supplemental complaint of the assignee is a waiver of error in that regard.

Searls, C. This action was brought June 16, 1894, by H. A. Ford and Edwin Clark to recover damages from J. J. Bushard and Joseph Mesmer for the violation of a written contract entered into by said defendants with the plaintiffs on September 11, 1890, for the sale and delivery by defendants to plaintiffs of say two thousand budded orange trees; five hundred thereof to be of the variety named Mediterranean Sweets and the remainder Washington Navels.

Plaintiffs claimed that, excepting a small number, the trees delivered were not of the varieties named in the contract.

Defendants answered separately, raising issues of fact, and defendant Mesmer denied the execution of the contract.

Thereafter and before the trial of the cause, upon the application of Carrie E. Ford, she was substituted as a party plaintiff in the cause in the place and stead of H. A. Ford, who it was shown had departed this life since the commencement of the action, and had before his death assigned all his right and interest in the contract to said Carrie E. Ford. The order of the court also granted her leave to file a supplemental complaint, which she did, setting out the death and assignment as aforesaid. Defendants answered the supplemental complaint, specifically denying the death of H. A. Ford, and the assignment by him to Carrie E. Ford.

The cause was tried before a jury, and a verdict ren. [276]dered in favor of plaintiffs for two thousand dollars. At the trial no evidence was offered to show the assignment by H. A. Ford to Carrie E. Ford.

The failure of evidence was assigned by defendants as one of the causes for a new trial. The motion for such new trial was denied, and defendants appeal from the judgment and from the order denying their motion for a new trial. Defendants claim that the order of substitution of Carrie E. Ford was made ex parte.

There is no showing in the record on the subject. If the order was made without notice, the answer of the defendants to the supplemental complaint without objection was a waiver of the error. (Smith v. Curtis, 7 Cal. 584.) Were it otherwise, we are, in the absence of any showing on the subject, to presume in favor of the regularity of the proceedings that notice was given.

The point is this: Plaintiff, Carrie E. Ford, having been substituted as plaintiff, not as the personal representative of H. A. Ford, but as his assignee, and having set up an assignment of the contract to her, which assignment was- denied by the defendants, was it necessary for her to proye such assignment in order to a recovery against defendants? We think this question must be answered in the affirmative.

Ford v. Bushard

AI Brief

Synopsis

More from California Supreme Court

Related research

AI Brief