Shotwell & Co. v. Gilkey's Adm'rs , 31 Ala. 724 ( 1858 )

WALKER, J.

— The question which was chiefly argued before us was, whether or not there was a misjoinder of counts. It was contended, that the amended complaint sets forth a contract requiring the averment of a special breach, while the original complaint set forth a contract which only required the assignment of a general breach ; and that, therefore, there was a misjoinder of causes of action, under section 2235 of the Code. The last complaint in the case is entitled an amended complaint, and not an amendment to the original complaint. We, therefore, consider it to be meant by the term “ amended complaint ” in the pleading. The demurrer was only to the amended complaint, which contains but one count. If it were conceded that the original complaint was not waived, a demurrer to the entire declaration would have been the only means of raising the question of a mis-joinder of counts. — Kent v. Long, 8 Ala. 44; Chandler v. Holloway, 4 Porter, 17; Jefford v. Ringgold, 6 Ala. 544; 1 Chitty on Pleading, 205-206. The demurrer in this case, applying only to the amended complaint, would not present the question of misjoinder of counts, and should, as to the assignment of such misjoinder as a ground of demurrer to the amended complaint, have been overruled.

2. Where one, for a sufficient consideration moving from another indebted to a third person, promises him so indebted to pay his creditor, a failure to comply with the contract gives a right of action, either to the promisee, or to the person for whose benefit the promise was made. The law was so settled by us, at the last term, in the case of Masou v. Hall, upon the clearest and most satisfactory authorities.

3. The amended complaint does not aver an assignment of the choses in action therein described, to the defendants’ intestate as a trustee, the assent to which by the plaintiffs’ creditors, being the beneficiaries, would be presumed. To constitute such an assignment a conveyance, a transfer of tbe title would be necessary. There was, upon the facts averred, no conveyance or transfer of title. There was a mere contract to collect certain debts, placed in the hands of the defendants’ intestate, and to pay over the money to the creditors of the plaintiff. By the breach of this contract, the plaintiff has been injured, and has a right of action.

The court erred, in sustaining the- demurrer to the amended complaint; and for that reason, the judgment of the court below is reversed, and the cause remanded.