Spurgeon & Dozier Co. v. McCall , 204 Ala. 395 ( 1920 )

Count B of the complaint shows upon its face that the plaintiff is suing for a tort or wrong committed against the Napier-McCall Company before its claim was assigned to him. In other words, it shows that the plaintiff is the assignee of a mere cause of action or chose in action and not of a promissory note, bond, or other contract, express or implied, for the payment of money as would authorize a suit in his own name under section 2489 of the Code of 1907. The count discloses in the plaintiff a mere equitable right which he could enforce only by suing in the name of his assignor. Snead v. Bell,142 Ala. 449, 38 So. 259; Hood v. Commercial Bank, 12 Ala. App. 511,67 So. 721, and cases there cited. The case of Hinton v. Nelms, 13 Ala. 222, is not in conflict with, but recognizes the rule declared in the cases supra, and merely authorized suit there upon the idea that there was a transfer of the property and not of a chose in action, and that the vendor had no notice of an adverse holding, and said case involved an action of detinue for the property and not one for the conversion of property. Whether said case harmonizes with the later cases of Foy v. Cochran, 88 Ala. 353, 6 So. 685, and Huddleston v. Huey, 73 Ala. 215, as to the right of the vendee to sue for property adversely held when he acquired his claim, we need not determine, as said Nelms Case fully recognizes the rule here invoked. Count B was subject to the defendant's twenty-fourth ground of demurrer, and which the trial court erroneously overruled. Count 1, while not so patently defective as count B, when construed against the pleader upon demurrer as must be done, was likewise defective.

It is sufficient to say, for the purpose of another trial, that the foregoing principle will prevent the plaintiff's recovery in his own name upon the other counts which may not present a demand within the influence of section 2489 of the Code, if the question is properly pleaded, notwithstanding the said counts may not disclose the facts, as the evidence shows that he acquired a mere chose in action under the assignment from the Napier-McCall Company. The Judgment of the circuit court is reversed, and the cause is remanded.

Reversed and remanded.

McCLELLAN, SOMERVILLE, and THOMAS, JJ., concur.