National Ass'n of Creditors, Inc. v. Grassley

292 P. 416, 159 Wash. 185, 1930 Wash. LEXIS 1011

• Court: Washington Supreme Court
• Decided: October 29, 1930
• Docket: No. 22576. Department One.
• Status: Published

Opinion

Tolman, J.

— The appellant, as plaintiff, instituted this suit upon three causes of action, the first being an open account for labor and material amounting to $164.92 originally contracted with Stone & Trobridge, and duly assigned in writing, before the commencement of the action, to the plaintiff. The second cause of action was also an open account for labor and material, contracted with another, amounting to ten dollars, and likewise assigned. The third cause of action was a similar account, contracted with still another, in the amount of seventy dollars, and assigned in the same manner. The second cause of action was abandoned before trial. Issues were raised by general denials and by an affirmative defense to the first and third causes of action, and a trial was had before a jury, resulting in a verdict in favor of defendants and a judgment thereon, from which-the plaintiff has appealed.

Respondents here move to dismiss the appeal, on the ground that the amount in controversy is less than two hundred dollars, it being argued that appellant admittedly took the assignments of the several causes of action for the purpose of collecting the claims. Respondents cite, in support of their motion, Garneau v. Port Blakely Mill Co., 20 Wash. 97, 54 Pac. 771, and Denison v. Denison, 16 Conn. 34. The first case cited does not meet the present issue, and if the other case does, we cannot follow it.

Our statute, Rem. Comp. Stat., § 179, requiring every action to be prosecuted in tbe name of tbe real party in interest, bas so often been construed so as to permit tbe person to whom tbe cause of action bas been assigned for tbe purpose of collection, to maintain an action tbereon, that authorities need not be cited. If, by sucb an assignment, tbe assignee obtains sufficient legal title to become tbe real party in interest for tbe purpose of prosecuting tbe action, be also bas sufficient title to prosecute tbe appeal. To bold otherwise would be illogical, and we need pursue tbe subject no further; but see Shannon v. Abrams, 98 Kan. 26, 157 Pac. 449, Ann. Cas. 1918E, 502, and note following. Tbe motion to dismiss is denied.

Appellant, by its assignments of error, complains of tbe instructions given, tbe ruling out of offered evidence, and tbe failure to grant a judgment, n. o. v., or to set aside tbe verdict of tbe jury, as being wholly unsupported by tbe evidence.

As to tbe instructions complained of, no exceptions thereto were taken, and they, however erroneous, became tbe law of tbe case.

During tbe course of tbe trial, appellant offered in evidence tbe affirmative answers of tbe respondents, and now contends that they contain admissions against interest, which were proper to go before tbe jury. Tbe appellant did not advise tbe trial court of bis purpose, and tbe court seems to have thought that tbe purpose was to avoid tbe rule forbidding tbe sending of tbe pleadings to tbe jury room. This misunderstanding, no doubt, was responsible for tbe ruling. On another trial, sucb an error will not occur, and, if offered, tbe affirmative answers will be admitted and appellant will be permitted.to argue to tbe jury bis theory of what tbe language therein used means.

It is doubtful if the affirmative answers presented full defenses to either cause of action, and, as we read the testimony of respondent Andrew Grassley, it presented no defense to the third cause of action, and a very doubtful defense to the first cause of action, which, with the most liberal interpretation, is incomplete, and leaves something owing. Thus, in legal effect, the evidence before the jury called for some recovery, and the verdict was not supported by any evidence in the case. Of course, appellant was not entitled to a judgment, n. o. v., for the full amount sued for, but on the motion for a new trial, the verdict should have been set aside.

The judgment is reversed, with instructions to grant a new trial.

Mitchell, C. J., Holcomb, Main, and Parker, JJ., concur.