Eagle Mining & Imp. Co. v. Lund.

• Decision Date: 25 February 1908
• Citation: 14 N.M. 417,94 P. 949
• Court: New Mexico Supreme Court
• Parties: EAGLE MINING & IMP. CO. et al.v.LUND.

14 N.M. 417

94 P. 949

EAGLE MINING & IMP. CO. et al.

v.LUND.

Supreme Court of the Territory of New Mexico.

Feb. 25, 1908.

Syllabus by the Court.

One who holds a draft made payable to himself may maintain an action thereon in his own name against the acceptor of such draft, even if he has no beneficial interest in the proceeds.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 7, Bills and Notes, §§ 1377-1398.]

Error to District Court, Chaves County; before Justice Wm. H. Pope.

Action by Robert E. Lund against the Eagle Mining & Improvement Company and others. Judgment for plaintiff, and defendants bring error. Affirmed.

One who holds a draft payable to himself may maintain an action thereon in his own name against the acceptor, even if he has no beneficial interest in the proceeds.

George W. Prichard, for plaintiffs in error.

Robert E. Lund, pro se.

MILLS, C. J.

The complaint in this case was filed in the district court of Chaves county on July 16, 1906. The action was based upon a draft or order which reads as follows, to wit:

“White Oaks, New Mexico, Sept. 26, 1901.

“John M. Rice, Esq., and the Eagle Mining & Improvement Company-Sirs: I do hereby authorize and request you, or either of you, in person or by representative, to pay to R. E. Lund, attorney at law, out of the purchase price payable for those certain mining claims sold you, the sum of seven thousand and seventy-seven dollars ($7,077) in discharge of those judgments and other demands which he holds against me and the said properties, as per statement exhibited to me, with interest thereon from and after the 1st day of October, A. D. 1901, if not then paid; and the production by you of this draft, duly receipted by said R. E. Lund, shall be accepted as full evidence of such payment to me, and oblige, Yours truly, Minor D. Gaylord.

“Accepted. John M. Rice, Manager Eagle Mining & Improvement Company.”

The complaint alleged that the draft or order was presented for payment at maturity, and many times thereafter, but that neither it, nor any part of it, has ever been paid. After a number of demurrers, motions to strike out, and other dilatory pleas had been filed and argued, which it will not be necessary for us to consider, the defendant the Eagle Mining & Improvement Company filed an amended answer, containing six paragraphs, the last of which is the only one which it will be necessary for us to consider. This paragraph reads as follows, to wit: “(6) That the defendant the Eagle Mining & Improvement Company for further answer avers that the said plaintiff, Robert E. Lund, is not the real party in interest in this suit, and is without capacity to sue in this suit; that the said order was given to the said Lund by the said Gaylord, as the attorney of one E. C. Uebrick and others, on account of a judgment of the said Uebrick and others against the said Gaylord in the Lincoln district court, territory of New Mexico, and in which suit and judgment the said Lund was not a party and had no interest therein, except as the attorney of the said Uebrick and others.” To this paragraph of the amended answer the plaintiff demurred, and the court sustained the demurrer, and the case was tried by a jury, which returned a verdict in favor of Lund.

As to whether or not the trial court committed error in sustaining the demurrer to paragraph 6 of the amended answer is the sole point involved in this case; for, if we find that no error was committed in the sustaining of this demurrer, then there is no reversible error in the case, for the contention of the plaintiffs in error is that judgment should have been given in their favor, for the reason that Lund was not the real party in interest, and therefore had no right to bring the suit in his own name. This contention of the plaintiffs in error is based upon subsections 2 and 3 of section 2685, Compiled Laws of 1897, which reads: “(2) Every action shall be presented in the name of the real party in interest, except as otherwise provided in the next succeeding section.” And such succeeding section reads: “(3) An executor or administrator, a trustee of an express trust, or a person expressly authorized by statute, may sue in his own name without joining with him the person for whose benefit the suit is prosecuted. A trustee of an express trust, within the meaning of this section, shall be construed to include a person with whom or in whose name a contract is made for the benefit of another.”

Statutes substantially similar to subsection 2 of section 2685, Compiled Laws of 1897, have often been before the courts of last resort in many of the states of the Union for interpretation, and have...