Long v. Heinrich

46 Mo. 603

• Court: Supreme Court of Missouri
• Decided: October 15, 1870
• Status: Published

Opinion

Bliss, Judge,

delivered the opinion of the court.

James Long & Co. advanced $300 for defendant upon his written request, and the plaintiff, as assignee of James Long & Co.', brings his suit to recover a balance due upon said advance. No defense upon the merits was made, to the claim, the defendant only insisting that it was not assignable, and that the plaintiff could not sue in his own name. Eor this view he relies upon the fact that, in the revision of 1865, chapter 21, entitled “Bonds, notes, and accounts,’’-found in the revision of 1855, was omitted; and section 4, providing for the assignment of accounts, is nowhere re-enacted. But this section was wholly unnecessary. Ever since the adoption of the code in 1849 it is necessary that every action be prosecuted in the name of the real party in interest, and if one owns a contract or account not assignable at common law, he should bring suit in his own name.

Gamble, J., in Walker v. Mauro, 18 Mo. 564, says : “The effect of our new code of practice in abolishing the distinction between law and equity, is to allow the assignee of a chose in action to bring suit in his own name in cases where, by the common law, no assignment would be recognized.” This opinion was given-in 1853, and before the enactment of said section 4, now dropped from the statutes.

The judgment of the District- Court is affirmed.

The other judges concur.