Idaho Apple Growers Association v. Brown

• Decision Date: 18 January 1932
• Docket Number: 5745
• Citation: Idaho Apple Growers Association v. Brown, 7 P.2d 591, 51 Idaho 540 (Idaho 1932)
• Parties: IDAHO APPLE GROWERS ASSOCIATION, Appellant, v. E. N. BROWN, Respondent
• Court: Idaho Supreme Court

7 P.2d 591

51 Idaho 540

IDAHO APPLE GROWERS ASSOCIATION, Appellant, v. E. N. BROWN, Respondent

No. 5745

Supreme Court of Idaho

January 18, 1932

AGRICULTURE - CO-OPERATIVE MARKETING ASSOCIATION-INCORPORATION-ASSIGNMENT OF CLAIMS-TRIAL-DIRECTED VERDICT.

1. On defendant's motion for directed verdict, evidence must be viewed in light most favorable to plaintiff.

2. Where impartial minds may fairly and reasonably differ under evidence, jury question is presented.

3. Incorporated co-operative marketing association held not entitled to maintain action on account as assignee of unincorporated association designated by same name, in view of evidence (Laws 1921, chap. 124).

4. On default of debtor of unincorporated voluntary association of apple growers, members of association were entitled to sue him direct.

5. That agent of unincorporated association later became manager and secretary of incorporated co-operative marketing association did not transfer to corporation account in his possession (Laws 1921, chap. 124).

APPEAL from the District Court of the Seventh Judicial District, for Canyon County. Hon. A. O. Sutton, Judge.

Action on account. Directed verdict for defendant. Plaintiff appeals. Affirmed.

Judgment affirmed. Costs to respondent.

S. Ben Dunlap, for Appellant.

An instruction which directs the verdict of a jury, admits the truth of the plaintiff's evidence and every inference of fact that can be legitimately drawn therefrom, and if there is evidence supporting the complaint, such instruction is erroneous. (Keane v. Pittsburg Lead Min. Co., 17 Idaho 179, 105 P. 60; Pocatello Security Trust Co. v Henry, 35 Idaho 321, 27 A. L. R. 337, 206 P. 175; Moody v. Morris Roberts Co., 38 Idaho 414, 226 P 278; Smith v. Marley, 39 Idaho 779, 230 P. 769; Brown v. Jaeger, 46 Idaho 680, 271 P. 464; Ashley State Bank v. Hood, 47 Idaho 780, 279 P. 418.)

In the absence of statutory provisions prescribing the mode of assignment, no particular method or form is necessary to effect a valid assignment of property, claims or debts. If the intent of the party to effect an assignment be clearly established, it is sufficient, and the assignment may be in the form of an agreement or order or any other instrument which the parties may see fit to use for the purpose. (Porter v. Title G. & S. Co., 21 Idaho 312, 121 P. 548; Page on Contracts, sec. 1277; Clark v. Sigua Iron Co., 81 F. 310, 26 C. C. A. 423; Good Fellows v. Campbell, 17 R. I. 402, 22 A. 307, 13 L. R. A. 601; Baillie v. Stephenson (Currie), 95 Wis. 500, 70 N.W. 660; 2 R. C. L., p. 614, sec. 21; Southern Mutual Life Ins. Assn. v. Durdin, 132 Ga. 495, 131 Am. St. 210, 64 S.E. 264.)

T. A. Walters and W. A. Stone, for Respondent.

The assignment, if any, was executed by an agent, and it was necessary for the plaintiff to prove the authority of such agent. (5 C. J. 1020, note 47.)

Mere possession of the account raised no presumption of the assignment. (5 C. J. 1016, sec. 251, note 96.)

The plaintiff relied upon an assignment to the plaintiff. It was therefore necessary for him to clearly establish the intent of the parties to effect an assignment. (Porter v. Title G. & S. Co., 21 Idaho 312, 121 P. 548, and cases cited under Point I.)

VARIAN, J. Lee, C. J., and Budge, Givens and Leeper, JJ., concur.

OPINION

VARIAN, J.

Appellant, a nonprofit co-operative marketing association incorporated under "The Cooperative Marketing Act" (Sess. Laws 1921, chap. 124, p. 298), prosecutes this action as assignee to recover $ 159.48, with interest, on an account for expenses incurred and merchandise furnished respondent in connection with the marketing of his 1923 fruit crop. The action was originally commenced in the probate court, where appellant recovered judgment. On appeal to the district court, upon both questions of law and fact, general demurrers to the complaint and amended complaint were sustained, resulting in an appeal to this court which held the amended complaint stated a cause of action. (See Idaho Apple Growers' Assn. v. Brown, 50 Idaho 34, 293 P. 320.) The case was retried in the district court culminating in an instructed verdict for defendant (respondent). Plaintiff appeals from the judgment entered on the verdict. A single question is presented by the record, was the appellant corporation entitled to maintain the present action as assignee of an unincorporated association designated by the same name?

After pleading the facts as to the unincorporated association, respondent's contract with its sales committee, the services rendered and expenses incurred in connection with respondent's 1923 fruit crop, their value, demand and refusal of payment, etc., the complaint alleges: "That thereafter and for a valuable consideration and with notice to and consent of defendant, said committee being duly authorized, assigned said account to this plaintiff; that the plaintiff is now the lawful owner and holder of said account."

It was stipulated that appellant was incorporated on February 16, 1924. The record shows that the last item of the account sued on is dated January 2, 1924, over a month before appellant was organized. Appellant's right to recover under the pleadings is grounded upon an assignment of the claim of the unincorporated association against respondent. After hearing appellant's evidence, the trial judge directed a verdict in favor of respondent, apparently upon the theory that appellant had failed to establish that the claim against respondent was assigned to it.

On motion by defendant for a directed verdict "the evidence must be viewed in the light most favorable to the plaintiff," and, "when the evidence is such that impartial minds might fairly and reasonably differ in the conclusions to be drawn therefrom, it presents a question of fact for the jury." (Brown v. Jaeger, 46 Idaho 680, 271 P. 464.) Such instruction "has the same effect as the sustaining of a motion for a nonsuit, and admits the truth of the plaintiff's evidence and every inference of fact that can be legitimately drawn therefrom, . . . . and that the evidence would not support a verdict even if found for the plaintiff." (Keane v. Pittsburg Lead Min. Co., 17 Idaho 179, 187, 105 P. 60, 63.)

The status of the association, at the time the account sued on was incurred, was that of a voluntary association of individuals at common law, there being no express statutory authority for its organization. (5 C. J. 1335.) The record does not disclose it had any articles of association, or by-laws, but clearly indicates that its affairs were administered through committees authorized from time to time by resolution of the members and that a president, vice-president, treasurer, secretary, and directors were elected. The title to the account sued on did not vest in the voluntary association, since it had no separate entity, but in the individual members of the association who controlled, managed, and disposed of its property at their joint pleasure. (5 C. J. 1359.) And on default of respondent the members of the association were entitled to sue him direct. (5 C. J. 1374; Idaho Apple Growers' Assn. v. Brown, supra.)

The testimony to support the allegations of assignment and ownership of the account may be summarized as follows:

R. H. Weed testified that he was a member of the sales committee and secretary of the unincorporated association; that he was secretary and manager of appellant corporation, and, as such, had in his possession its records, books, and effects; that the books of the unincorporated association came into his hands as its secretary; and on being asked how the books came into the hands of appellant corporation replied, "They were assigned to them." The answer was stricken. He then testified that there was a record made assigning the books of the unincorporated association to appellant, and designated the minutes of a meeting of the members of the unincorporated association held December 18, 1923, as containing said record. The minutes referred to show that a president, vice-president, secretary-treasurer, and board of eight directors were elected at said meeting; that it was "Moved and seconded that the books be audited and turned over to the new officers"; that pursuant to said resolution the books containing the account against respondent were turned over to appellant corporation; that the witness kept the books of the unincorporated association after December 20, 1923; that the items were furnished respondent by the sales committee of the former association.

Q. "Mr. Weed, how did this account that you have been testifying to, come into the possession of the Idaho Apple Growers Association?" A. "It was assigned to them by the Idaho Apple Growers Association." (Answer stricken.)

Q. "Prior to incorporation?" A. "Yes, sir."

The witness then testified that the books and records of the unincorporated association came into his hands as manager of the corporation.

Q. "Was there any writing made at the time you acquired possession of this account?" A. "Just in the minutes is all."

Q. "That is all there is?" A. "Yes, sir."

Q. "Do you know the date of that minute?" A. "I think it was December about the 18th or 20th. I do not remember exactly. It is here (referring to the minute book). "

Q. "Then you mean to say that under that minute these books belonging to the old group were physically turned over to you for your care. Is that what you mean to say?" (Objection overruled.) A. "The books were part of them in my possession at that time, and they were left in my possession and I carried them through and had them while secretary and bookkeeper for the old group and also while secretary and manager for the incorporated association."

Q. "What committee, if any, turned these...