Dunn v. Utah Serum Co. ( 1925 )

On Application for Rehearing. The appellant has filed a petition for a rehearing, on the ground that we have overlooked and failed to decide one of the main points in the case. It is true that the point was overlooked by the writer of the opinion which has been filed, but it is not one of controlling importance. It may be disposed of without a rehearing.

The Utah Serum Company obtained a judgment against the Ft. Dodge Serum Company on its cross-complaint for the rent due on the lease of the plant dated May 23, 1923. It appeared from the evidence, however, that on July 26, 1923, the Utah Serum Company had executed and delivered to the National Bank of Commerce, of Ogden, Utah, an instrument in writing by which it sold, assigned, and transferred to the bank all of the rent due or to become due under the lease. A duplicate of this assignment was likewise delivered to the Ft. Dodge Serum Company. But it was an admitted fact that the Iowa corporation did not pay any rent to the bank; and the evidence showed without conflict that the bank had never made any demand for rent. It also appeared from the evidence, without conflict, that this assignment was given as collateral security for a debt owing by the Utah Serum Company, and that before the commencement of this action the debt had been paid and the assignment returned or surrendered by the bank to T.D. Ryan, president of the Utah Serum Company.

Counsel for appellant in the brief says:

"Upon what theory the trial court could grant a judgment for the rent after the same had been absolutely assigned is beyond our comprehension. It has always been our belief that. when an assignment, was made, the assignor no longer had a right to sue or recover upon the original claim, and that the action could only be brought in the name of the assignee. This doctrine for years has had the sanction of this court. Wines v. RioGrande, 9 Utah, 228."

The foregoing is the extent of counsel's argument and comment contained in his brief upon the point which we overlooked. But he makes the further suggestion in the petition for a rehearing that, since the assignment is absolute in form and no reassignment has ever been made by the bank to the Utah Serum Company, the bank may at any time sue and recover for the rent, with the result, if this judgment be permitted to stand, that the Ft. Dodge Serum Company might have to pay the debt twice.

The weakness of this position lies in the assumption that the right to the rent was vested in the bank and not in the Utah Serum Company, and hence as to this matter the latter is not the real party in interest. This assumption is untenable, in view of the evidence contained in this record and of the reasonable inference to be drawn therefrom. The Utah 7 corporation assigned the rent to the bank to secure the payment of a debt. No rent was ever paid to the bank nor did the latter ever demand payment of the same. The debt being paid, the bank returned and surrendered the written assignment to the president of the assignor named therein. The reasonable inference to be drawn from these facts is that the bank intended thereby to reassign or to relinquish whatever right or interest it had to the rent. The effect of the transaction was to reinvest the Utah Serum Company with the right or title to the claim for the rent. No writing was necessary to this purpose.

The petition for rehearing, therefore, ought to be denied.

GIDEON, C.J., and FRICK and CHERRY, JJ., concur.