Gregoire v. Rourke , 28 Or. 275 ( 1895 )

Opinion by

Mr. Justice Moore.

1. The plaintiff contends that it was unnecessary to allege or prove a valuable consideration for the assignment, and that the want thereof should not bar his recovery. There is some conflict of authority upon the question presented, but we think the weight of it is in favor of the legal proposition for which the plaintiff contends, and that the right of recovery depends, not upon what may have been paid for the assignment, but whether the plaintiff is the real party in interest. The courts entertaining views different from this proceed upon the theory that, the assignee having paid nothing for the assignment, the donor may change his mind, and withhold from the object of his liberality the contemplated benefit. The weight of authority seems to be that in an action by an assignee of a chose in action, the defendant may controvert the allegation of ownership, and prove that the plaintiff is not' the real party in interest. If, however, the assignment is actually made, he cannot question it upon the ground that there was no consideration paid therefor: 1 Beach on Modern Equity Jurisprudence, § 345; Stone v. Frost, 61 N. Y. 614; Warder v. Jack, 82 Iowa, 435 (48 N. W. 729); Wolff v. Matthews, 39 Mo. App. 376; Pugh v. Miller, 126 Ind. 189 (25 N. E. 1040); Norris v. Hall, 18 Me. 332; Arthur v. Brooks, 14 Barb. 533; Richardson v. Mead, 27 Barb. 178; Beach v. Raymond, 2 E. D. Smith, 496; Miles v. Fox, 4 E. D. Smith, 220; Whit-taker v. County of Johnson, 10 Iowa, 161. But, whatever the rule may be elsewhere, it has been settled in this state that the title to a chose in action passes by assignment, that the assignee is authorized to bring an action thereon; and that it is immaterial whether he paid any consideration therefor: Dawson v. Pogue, 18 Or. 94 (6 L. R. A. 176, 22 Pac. 637).

2. The plaintiff alleged facts showing the existence of a demand against the defendants which had been assigned to him, and hence his complaint shows that he is the real party in interest, and has a prima facie right of action. It is true he alleged that the claim had been sold to him, which implies a payment or promise as a consideration therefor, but as his right of action is founded upon the fact, and not the consideration, of the assignment, it was unnecessary to prove that he had paid any consideration therefor, and hence the allegation that the claim was sold to him was surplusage and should have been disregarded: Bliss on Code Pleading, § 215; Hoyt v. Seeley, 18 Conn. 352; Bean v. Simpson, 16 Me. 49; Grubb v. Mahoning Navigation Company, 14 Pa. St. 302; Lyons v. Merrick, 105 Mass. 71. The instruction complained of is erroneous, but the rule is well settled that a judgment will not be reversed for th-at reason unless it appears probable that the jury was misled thereby: 2 Thompson on Trials, § 2401; Salmon v. Olds, 9 Or. 488. In the case at bar there can be no doubt that the jury was misled by the instruction excepted to, and hence the judgment must be reversed and a new trial ordered. Reversed.