Lafferty v. Rutherford , 5 Ark. 649 ( 1844 )

By the court,

Sebastian J.

In the examination of this cause many questions are presented, which it is unnecessary to decide. We confine ourselves entirely to one, which alone will decide the fate of the cause, and which, although not in express terms discussed in the circuit court; yet as it is presented by the record, we are not at liberty to. decline it. Among other instructions which were asked by the defendant, the court refused to give the following, “that the demand offered in evidence is not sufficient to warrant a recovery.” Under this the court should have examined the questions of law arising upon the record, and if it appeard that the plaintiff had no cause of action, the jury should have been so instructed. The written undertaking or contract, for the delivery of corn to the plaintiff was introduced in evidence, as well as the assignment thereon to Callan, for whose use the action 'was brought. This assignment was upon the instrument sued on, as the basis of the- action, and was evidently regarded as a mere declaration by the plaintiff, that Callan was the beneficial owner of the contract. This mistake, as to the law by the parties, cannot alter or prejudice their rights, nor does it render the proceedings more regular, that the point was not expressly insisted on by the defendant.

By the Rev. Stat. ch. 11, sec. 1, it is enacted that, “all bonds, bills, notes, agreements, contracts, in writing, for the payment of money or property, or for both money and property, shall be assignable.” And the assignee may sue for the same in his own name, as assignee thereof in the same manner that the original obligee or payee might or could do.” It is clear that this is a contract in writing for property, upon which an action would lie, previous to the passage of the statute, by the original payee. The effect of the statute is to substitute the as. signee to the rights of the assignor, and he may resort to the same form of remedy, and sue in the same manner. By the assignment, the legal title passes to the assignee, who is then clothed with the right of action, and who cannot divest himself of it, except by the same means, by which he acquired it. This principle has heretofore been held by this court, in Gamblin vs. Walker, 1 Ark. Rep. 220, in which the question was fully examined and decided. According, therefore, to this view of the case, the legal right of action at the time of the commencement of this suit was in Callan, and not in Rutherford. This disposes, of the case without examining any other questions upon the proceedings below. Judgment reversed.