Walker v. Mauro

18 Mo. 564

• Court: Supreme Court of Missouri
• Decided: October 15, 1853
• Status: Published

Opinion

Gamble, Judge,

delivered tbe opinion of tbe court.

Tbe petition in tbis case states tbe fact that Scoffeld & Ferris were indebted to tbe plaintiff, and with sufficient distinctness alleges that Mauro, by being tbe tenant of S. & F. became indebted to them in tbe sum of $150 for rent. It next states, that S. & F. assigned to plaintiff tbe debt of tbe defendant on account of tbe rent due to them, and that such assignment is evidenced by an order drawn by S. & F. on tbe defendant for tbe whole amount due, which order tbe defendant refused to pay. The petition was demurred to and tbe demurrer sustained.

1. Tbe allegation of Mauro’s indebtedness to Scofield & Ferris is, that Mauro, with tbeir permission, entered into and took possession of a building (which bad been leased to Scofield & Ferris) and used and occupied tbe same for tbe period of fifteen days, thereby becoming tbe tenant of S. & F. and indebted to them for tbe use and occupation thereof, in such sum as tbe same was worth, which is averred to be tbe sum of one hundred and fifty dollars. It is not seen that tbis allegation of indebtedness would not be sufficient, if Scofield & Ferris bad sued tbe defendant for tbe value of tbe occupation of tbe premises occupied by him with tbeir permission and as tbeir tenant, and if it would be sufficient in a suit by them, it is sufficient in a suit by tbeir assignee, and in tbis action tbe defendant has all tbe defences be would have against Scofield & Ferris, arising before notice of tbe assignment.

2. Tbe effect of our new code of practice, in abolishing tbe distinction between law and equity, is to allow tbe assignee of a chose in action to bring suit in bis own name, in cases where, by tbe common law, no assignment would be recognized. In tbis respect, tbe rules of equity are to prevail, and tbe assignee may sue in bis own name. How far the statute which directs the mode of assigning bonds and notes is affected by this change in our mode of proceeding, we will not now say.

In the present case, as the assignee of the debt due from the defendant to Scofield & Ferris may sue in his own name, (2 Story’s Eq. §1057; Dobyns v. McGovern, 15 Mo. 662; Ex parte South, 8 Swanst. 398 ; Lett v. Morrison, 4 Sim. 607) it only remains to consider whether such an assignment is stated in the petition. It is stated that they assigned the debt to the plaintiff, and that the assignment is evidenced by an order for the amount on the defendant. This is a sufficient assignment of the fund in equity. Lett v. Morrison. Ex parte South. Mandeville v. Welch, 5 Wheat. 277. At law no action could be maintained by the assignee, unless the debtor assumed to pay the amount assigned, but in equity it is different.

The judgment is, with the concurrence of the other judges, reversed, and the cause remanded.