Dayton v. Fargo

• Citation: 45 Mich. 153,7 N.W. 758
• Court: Supreme Court of Michigan
• Decision Date: 05 January 1881
• Parties: DAYTON, impleaded etc., v. FARGO.

7 N.W. 758

45 Mich. 153

DAYTON, impleaded etc., v. FARGO.

Supreme Court of Michigan

January 5, 1881

A cause of action for deceit is not assignable. Where suit is brought upon such cause of action by one claiming as an assignee thereof, pleading in bar is not a waiver of objections to the assignment.

Error to Ingham.

M.O. &amp R.A. Montgomery, for plaintiff in error.

John C Shields, for defendant in error.

CAMPBELL J.

Fargo as assignee of Henry Hart and Dayton was sued jointly with one John B. Hooker, under a declaration containing two counts--one in case of obtaining property under false pretences, and the other in trover for the conversion of the same property. No process was served upon Hooker and it does not appear from the printed record that there was any return of not found. The jury found a verdict for Fargo upon the first count and not upon the second. It is necessary therefore to examine into the nature of the count on which recovery was had, in order to see the bearing of some of the errors assigned. It sets forth a bargain between Hart and both defendants whereby Hart was to sell certain lumber to them and take in payment a note of Hooker alone. It avers that defendants caused Hart to sell the lumber fraudulently by representing that the note was good and Hooker responsible, and that Hart confiding in the representations delivered the lumber and took the note in payment, and that Hooker was worthless and the note valueless. It then avers an assignment of all claim for the price and value of the lumber, and of the cause of action growing out of the transaction, and that by reason of the premises plaintiff has been deprived of the use and value of the property, and that "defendants on the said sale falsely and fraudulently deceived the said Henry Hart, as aforesaid, out of the said lumber," etc.

The only effect which can be given to the count is that it is an action on the case for deceit, to recover damages for the fraudulent representations whereby Hart was induced to part with his property without any valuable consideration. It is claimed that this cause of action was not assignable. The general doctrine both at law and in equity has always been that nothing is assignable that does not directly or indirectly involve a right of property. It has been held repeatedly in this state that equity will not enforce the demands of an assignee of a right to sue for fraud, when the cause of action is confined to that. Carroll v. Potter, Walk.Ch.R. 385; Morris v. Morris, 5 Mich. 171; Bush v. Sweet, 38 Mich. 54; Dickinson v. Seaver, 44 Mich. ----.

In Final v. Backus, 18 Mich.R. 218, it was held that under our statute authorizing suits by assignees of rights in action, the general doctrine is that actions for torts are not assignable, and that only such as survive to the personal representative of the injured party could be sued for by an assignee. That was an action of trover, and it was held properly brought because the statutes had expressly taken it out of the common-law rule. This case has been followed and affirmed in other decisions. Brady v. Whitney, 24 Mich. 154; Grant v. Smith, 26 Mich. 201.

By section 5828 of the Compiled Laws it is provided that "in addition to the actions which survive by the common law, the following shall also survive; that is to say actions of replevin and trover, actions for...