Ashby v. Winston

• Decision Date: 31 January 1858
• Citation: 26 Mo. 210
• Parties: ASHBY, Plaintiff in Error, v. WINSTON et al., Defendants in Error.
• Court: Missouri Supreme Court

26 Mo. 210

ASHBY, Plaintiff in Error,

v.WINSTON et al., Defendants in Error.

Supreme Court of Missouri.

January Term, 1858.

1. During the pendency of a suit on a promissory note, the plaintiff, to secure a note executed by him in favor of one A., executed an instrument in the following form: [After recitals] “I do by these presents transfer, assign and set over to said A. all my right, title, claim and interest in and to said suit, or to such judgment as I may obtain against said W. in said suit, or so much thereof as may be sufficient to satisfy said note first above recited, and I do hereby authorize C., my attorney in said suit, or the sheriff of said county, whenever said money shall be collected of said W., to pay over the same to said A., or so much thereof as shall be necessary to satisfy said debt.” Held, that this operated as an equitable assignment of the note sued on and gave to the assignee a right to control the suit; that W., having notice of the assignment, would have no right to compromise the suit without the consent of A.

2. Where there is a misjoinder of causes of action any defendant may demur to the petition; where, however, there is a joinder of improper parties as defendants, the defendant or defendants improperly joined can alone demur.

Error to Cole Circuit Court.

This was an action instituted by Thomas T. Ashby against A. P. Dorris, William Kerr and G. B. Winston. Plaintiff set forth in his petition substantially that Dorris and Kerr, by their promissory note dated July 2, 1855, promised to pay plaintiff $743.22 one day after date; that said note is still due and unpaid; that before and on the 8th day of July, 1855, Dorris had pending a certain suit against Winston founded on two promissory notes, amounting to between $1500 and $1600, executed in favor of said Dorris by Winston; that Dorris, in order to secure to plaintiff, Ashby, the payment of the above note for $743.22, made and executed to plaintiff a certain instrument of assignment; that by the terms of said deed of assignment said Dorris transferred, assigned and set over to this plaintiff all his right, title, claim and interest in and to said suit, or to such judgment as the said Dorris might obtain against said Winston in said suit, or so much thereof as might be sufficient to pay off and satisfy said note due this plaintiff; that said deed of assignment authorized M. M. Parsons, the then attorney of said Dorris in the suit against Winston, or the sheriff of Cole county, whenever the said money should be collected of said Winston, to pay over the same to this plaintiff, Ashby; that Winston had full knowledge of this assignment; that plaintiff took the assignment by the advice of said Winston; that Winston afterwards compromised said suit with Dorris, and paid the money to Dorris and had the suit dismissed without the knowledge or consent of plaintiff and in fraud of his rights; that Dorris & Kerr are, and were at the time said compromise was made, insolvent. “Plaintiff therefore asks judgment against the said defendants, Dorris, Kerr and Winston, for the amount of said note hereto annexed and interest, and for such other and further relief as he may be entitled to in the premises.”

Dorris and Kerr answered, admitting their liability on the note, but setting up an offset in a small amount. Winston demurred on the grounds that there was a misjoinder of parties defendant; that there was a misjoinder of causes of action; that the petition does not show a cause of action. This demurrer was sustained.

Parsons and Adams, for plaintiff in error.

I. The assignment by Dorris to plaintiff was legal and valid both in law and equity and could be enforced. (Parsons on Contracts, 196; Chitt. on Cont. 628-9; Morton v. Naylor, 1 Hill, 583; Walker v. Mauro, 18 Mo. 564.)

II. The petition contains only one object; that is the recovery of the plaintiff's debts due by Dorris and Kerr, and for which Winston became liable by the assignment, with his advice and consent, by Dorris. Dorris and Kerr...