Norton v. Consolidated Fisheries, Inc.

GOODELL, J. Respondent sued as assignee of about 60 commercial fishermen, for the price or value of their salmon catch for the 1949 season. The complaint names all the assignors and specifies the value of the fish delivered by each, aggregating $12,650.40. Judgment was rendered for $11,703.15 with interest and costs, and after the denial of a new trial this appeal was taken.

The answer admits that the reasonable price of the fish delivered to Consolidated at Pittsburg, California, was $12,549.60.

Only two of the assignors testified, namely, Joe and Vince Aiello who denied making any assignment; the court found in their favor and reduced the assignee’s claim accordingly. As to all the others the court found in accordance with plaintiff’s allegation that before suit each of the fishermen had orally assigned his claim to her and that she was the owner and holder thereof.

Two affirmative defenses were pleaded but the court found “That each and all of the allegations [thereof] except such as are herein expressly found to be true, are untrue.”

The first defense was that prior to September 20, 1949, all the fishermen named in the complaint had assigned [88]all their right, title and interest in their 1949 salmon catch (including fish delivered to Consolidated) “to a special fund managed and controlled by International Fishermen & Allied Workers of America, Local No. 35.” It is then alleged that those who assigned to the special fund included fishermen not named in the complaint, who owed Consolidated $10,907.87 for gear and netting advanced to them for the 1949 salmon season; further, that all the assignors to the special fund operated as joint venturers under the special fund managed, controlled and directed by Local 35. It concluded with the claim that Consolidated had a valid offset against the special fund for $10,904.87 and that “any subsequent purported oral assignment to plaintiff ... is null and void and of no effect in law as to this defendant. ’ ’

The second defense was “that the purported oral assignment to plaintiff was illegal and fraudulent for the purpose of depriving this defendant of exercising its valid claim and offset against the . . . special fund” in that plaintiff was and continued to be secretary-treasurer of Local 35 and “that in form the present action was instituted by plaintiff in her individual capacity, but in substance the present action is being instituted by plaintiff in her representative capacity as secretary-treasurer of ... 35 and for its benefit.” For these reasons the defense claimed that plaintiff and her assignors were estopped from asserting any claims against defendant.