Charles Nelson Co. v. United States

W.D. Washington

Charles Nelson Co. v. United States

11 F.2d 906, 1926 A.M.C. 743, 1926 U.S. Dist. LEXIS 1054

CourtDistrict Court, W.D. Washington

DecidedApril 2, 1926

DocketNo. 8687

StatusPublished

Cited by6 cases

This text of 11 F.2d 906 (Charles Nelson Co. v. United States) is published on Counsel Stack Legal Research, covering District Court, W.D. Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Charles Nelson Co. v. United States, 11 F.2d 906, 1926 A.M.C. 743, 1926 U.S. Dist. LEXIS 1054 (W.D. Wash. 1926).

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Opinion

NETERER, District Judge.

Plaintiff’s . recovery must rest upon its 'right at the inception of the suit. Hollingsworth v. Flint, 101 U. S. 591, 25 L. Ed. 1028; American Bonding & Trust Co. v. Gibson County, 145 F. 871, 76 C. C. A. 155, 7 Ann. Cas. 522. Under section 954, R. S. (Comp. St. § 1591), courts have wide discretion in permitting amendments, and an amendment relates back to the time of the commencement of the action. Union Pacific Railway Co. v. Wyler, 15 S. Ct. 877,158 U. S. 285, 39 L. Ed. 983. Amendments are allowable in admiralty, even in matters of substance, with due -consideration to the rights of the opposite party. The Edwin Post (D. C.) 6 F. 206; The Imogene M. Terry (D. C.) 19 F. 463; The Corozal (D. C.) 19 F. 655. The chose in action constitutes a property right, and the beneficial interest may be transferred. Edmunds v. Illinois Central R. R. Co. (C. C.) 80 F. 78. Oral assignment of a chose in action is valid. In re Maeauley (D. C.) 158 F. 322. Assignment of choses in action against the United States Shipping Board Emergency Fleet Corporation is not forbidden. Providence Engineering Corporation v. Downey Shipbuilding Corporation (D. C.) 3 F. (2d) 154.

The amendment does not change the right of the litigants, nor the facts material to the liability. The respondent cannot be prejudiced. The Glymont was operated by the libelant. If injury was occasioned to the ship through the negligence of the respondent, the liability does not change or prejudice respondent by reason of the amendment changing the relation of the libelant from owner to operator and assignee of the claim and right of action. It is alleged that the respondent recognized the claim as due to the plaintiff, having liquidated a portion thereof, but denied liability for that asserted in the libel. The fact that the formal assign[907]*907ment was not made until November 5, 1924, does not postpone tbe assignment if, in fact, orally made at tbe time contended for.

The motion to amend is granted.

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NETERER, District Judge.

Plaintiff’s . recovery must rest upon its 'right at the inception of the suit. Hollingsworth v. Flint, 101 U. S. 591, 25 L. Ed. 1028; American Bonding & Trust Co. v. Gibson County, 145 F. 871, 76 C. C. A. 155, 7 Ann. Cas. 522. Under section 954, R. S. (Comp. St. § 1591), courts have wide discretion in permitting amendments, and an amendment relates back to the time of the commencement of the action. Union Pacific Railway Co. v. Wyler, 15 S. Ct. 877,158 U. S. 285, 39 L. Ed. 983. Amendments are allowable in admiralty, even in matters of substance, with due -consideration to the rights of the opposite party. The Edwin Post (D. C.) 6 F. 206; The Imogene M. Terry (D. C.) 19 F. 463; The Corozal (D. C.) 19 F. 655. The chose in action constitutes a property right, and the beneficial interest may be transferred. Edmunds v. Illinois Central R. R. Co. (C. C.) 80 F. 78. Oral assignment of a chose in action is valid. In re Maeauley (D. C.) 158 F. 322. Assignment of choses in action against the United States Shipping Board Emergency Fleet Corporation is not forbidden. Providence Engineering Corporation v. Downey Shipbuilding Corporation (D. C.) 3 F. (2d) 154.

The amendment does not change the right of the litigants, nor the facts material to the liability. The respondent cannot be prejudiced. The Glymont was operated by the libelant. If injury was occasioned to the ship through the negligence of the respondent, the liability does not change or prejudice respondent by reason of the amendment changing the relation of the libelant from owner to operator and assignee of the claim and right of action. It is alleged that the respondent recognized the claim as due to the plaintiff, having liquidated a portion thereof, but denied liability for that asserted in the libel. The fact that the formal assign[907]*907ment was not made until November 5, 1924, does not postpone tbe assignment if, in fact, orally made at tbe time contended for.

The motion to amend is granted.

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11 F.2d 906, 1926 A.M.C. 743, 1926 U.S. Dist. LEXIS 1054, Counsel Stack Legal Research, https://law.counselstack.com/opinion/charles-nelson-co-v-united-states-wawd-1926.

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