Dickenson v. Harris & Cotham , 48 Ark. 355 ( 1886 )

Cocicrill, O. J.

The appellants’ complaint in equity ^ against the appellees, to compel them to account for the proceeds of cotton which it was alleged they purchased from the appellants’ tenants with notice of the landlord’s lien, wa3 dismissed by the court upon demurrer.

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The suit was instituted within the life of the lien by J. W. Dickenson alone. The complaint discloses that the land belonged to his wife; that in leasing it for the year in question he acted as her agent; but that the contract was made by him with the tenants in his own naiiie. A note for the rent executed by the tenants and containing the terms of the lease is made a part of the complaint, and is payable to the “order of J. W. Dickenson, attorney.”

After the time for instituting suit to enforce a landlord’s lien had expired, Dickenson’s wife, the real party in interest, was made a party plaintifi' with him, and the appellees’ argument is that this must be regarded as the real date of beginning the suit, and that it is by the adjudged cases out of time.

The statute provides .that every action shall be prosecuted by the real party in interest, except that “ an executor, administrator, guardian, trustee of an express trust, a person with whom, or in whose name a contract is made for the benefit of another, or the state, or any officer thereof, or any person expressly authorized by the statute to do so, may bring an action without joining with him the person for whose benefit it is prosecuted.” Mansf. Dig., sec. 4936.

It is apparent that J. W. Dickenson is not the real party in interest, but he is a party with whom and in whose name a contract is made for the benefit of another, and as such he comes within the limitation upon the general requirement as to interest made by the statute cited, and is authorized to sue in his own name, notwithstanding the beneficial interest is in another. This provision is found in the codes of other states, and it has generally received the construction which its language obviously indicates. Bliss Code Pldg., secs. 55, 53; Pomeroy's Remedies, sec. 175 ; Considwant v. Brisbone, 22 N. Y., 389; Pitney v. Glens Falls Ins. Co., 65 ib., 6-18; Scantlin v. Allison, 12 Kan., 85 ; Rice v. Lareny, 22 Iowa, 471; Ely v. Porter, 58 Mo., 158; Durfree v. Morris, 49 ib., 55; Pindall v. Trevor, 30 Ark., 249.

In Boyd, as trustee, v. Jones, 44 Ark., 314, it was held that the person to be beneficially interested was a necessary party to that suit because the object of the bill was not only to collect the fund, but to have the court administer or distribute it; but it is there said that if the only object was to recover the fund so as to enable the trustee afterwards to distribute it agreeably to the trust, it was unnecessary to bring before the court the parties beneficially interested.

2. Same: Samo: Amendment.

The only object of J. W. Dickenson’s suit was to collect the rent. The resort to equity was made necessary only by reason of the change in the form of the property upon which the lien was impressed. (Reavis v. Barnes, 36 Ark., 575; Anderson v. Bowles, 44 ib., 110.) This suit- in no wise affected his relations with his wife, who held the beneficial interest, and she was not a necessary party. Carey v. Brown, 92 U. S., 171.

It is not essential, however, that the party in whose name a contract is made should become plaintiff. The real party in interest may sue, as was done in the case similar to this, of Nolen v. Royston, 36 Ark., 561; Hunnicut v. Kirkpatrick, 39 ib., 172; Bliss Code Pldg., sec. 58. As this suit was legally instituted by J. W. Dickenson within the time prescribed by the statutes, the defendants could sustain no injury by permitting the person holding the beneficial interest, and who might have sued alone or as co-plaintiff with J. "W. Dickenson, to be joined as party plaintiff at any time after the institution of the suit. Wilkelmaier v. Weaver, 28 Mo., 358; Price v. Wiley, 19 Texas, 142.

It is further insisted that the order of dismissal is right because the contract shows that the amount claimed is for rent and the hire of personal property combined without separating the two, but this fact does not destroy the equity of the bill to enforce whatever lien there may have been upon the cotton for rent of the land. Harris v. Hanks, 25 Ark., 510. The amount due as rent is a question of fact to be determined by the proof (Varner v. Rice, 39 Ark., 344 ¡ Roth v. Williams, 45 ib., 447), and the bill alleged that the hire of the property named was worth nothing, and the whole amount claimed was for rent of the demised premises.

3. same: forcetoi!en for rent, &<i

The appellees could take nothing upon their demurrer.

We have avoided saying anything about the allegations in the bill seeking to compel the appellees to account for money collected by them upon a policy of insurance against loss by fire on a part of the crop. The facts are indefinitely set forth, and the question has not been argued by counsel. Sufficient is seen to reverse the decree and the parties can make their issues as to this question, if desired, in a more tangible form.

Reverse and remand, with directions to overrule demurrer.