Kansas Midland Ry. Co. v. Brehm
| Decision Date | 09 March 1895 |
| Citation | 39 P. 690,54 Kan. 751 |
| Parties | THE KANSAS MIDLAND RAILWAY COMPANY v. JOHN H. BREHM |
| Court | Kansas Supreme Court |
Error from Reno District Court.
ACTION by Brehm against the Kansas Midland Railway Company to recover certain damages. Judgment for plaintiff. The defendant brings the case here. The opinion herein, filed March 9, 1895, states the material facts.
Judgment reversed.
A. A Hurd, and Robert Dunlap, for plaintiff in error:
1. An action cannot be maintained by Brehm upon any of these claims, for the reason that the same are not assignable. Such a claim was not assignable at common law, and is not assignable under § 26 of the civil code. See McCrum v Corby, 11 Kan. 464; 2 Story, Eq. Jur., §§ 1040h 1049.
It will be seen that courts of equity refuse to recognize assignments of torts, because of the encouragement which might be given to champerty and maintenance, and the assignment of such causes of action is against the policy of the law. That this was the rule prior to the adoption of the code, there can be no question. See Garner v. Adams, 12 Wend. 297, 298. And immediately after the adoption of the code in New York, it was held that the same rule still applied. See Hyslop v. Randall, 11 How. Pr. 97; Thurman v. Wells, 18 Barb. 500; Jones v. Babcock, 15 Mo.App. 149; M. & M. Rld. Co. v. M. & W. Rld. Co., 20 Wis. 183.
2. As to all the other claims, the agreements are unquestionably champertous, against public policy, and illegal, and will not be enforced. Moreover, they simply amount to a power of attorney to sue, and are not assignments of the claims.
Where it appears that a party is attempting to enforce a right under a contract which appears or is shown to be against public policy, the courts will refuse him their aid, and refuse to permit him to recover a judgment. See Sheldon v. Pruessner, 35 P. 201; Jones v. Blacklidge, 9 Kan. 562; A. T. & S. F. Rld. Co. v. Johnson, 29 id. 218; 3 Am. & Eng. Encyc. of Law, 68, et seq., "Champerty and Maintenance." See, also, Brown v. Beauchamp, 5 T. B. Mon. 413.
G. A. Vandeveer, and D. H. Martin, for defendant in error:
1. May a thing in action not arising out of contract be assigned? We satisfy ourselves by calling the attention of the court to Stewart v. Balderston, 10 Kan. 131. See, also, Comegys v. Vasse, 1 Pet. 213.
2. Were the contracts of assignments champertous, against public policy, and void? The contracts themselves are conclusive against this claim of the plaintiff in error. They show conclusively, in connection with the evidence, that there was no officious intermeddling in the matter by Brehm. A large number of farmers had lost their property through the negligence of the defendant. Brehm had purchased one or two of the claims, and evidently to avoid a multiplicity of suits, vexatious and expensive litigation, the other claims were assigned to him.
This suit is not brought upon a champertous contract. It is brought to recover for the injury done by the plaintiff in error. A. T. & S. F. Rld. Co. v. Johnson, 29 Kan. 218, and the dissenting opinion by Mr. Justice BREWER, are authority enough upon this subject.
The contracts give no specific lien to the assignor upon the proceeds of the suit. Brehm agrees to pay a sum equal to whatever he might recover, less certain expenses, to be due after he recovers the same. This provision of the assignment was only for the purpose of measuring the amount which Brehm agreed to pay. There is no champerty in this. 3 Am. & Eng. Encyc. of Law, 78-86.
The assignor gets no part of the thing sued for. See Neal v. Franklin, 43 Ill.App. 267.
This was an action brought by John M. Brehm against the Kansas Midland Railway Company and the Kansas Construction and Improvement Company to recover damages alleged to have been suffered by nine other parties through the negligent escape of fire from the locomotives of the defendants below, which, it is averred, burnt up and destroyed hay and other property belonging to those parties. These claims for damages were assigned to Brehm. Two of them appear to have been assigned to and purchased by him outright for a specific consideration, and the remainder of the claims were conditionally assigned to him. The conditions were as follows:
"Now, I have and do hereby transfer, assign and set over to John M. Brehm all my said claim against said company or against whomsoever it may be because of said damages, hereby fully authorizing and empowering said Brehm to settle or sue on said claim, and recover damages therefor as fully as I have power to do at this time; and said Brehm is to and hereby agrees to pay to me for my said claim an amount equal to whatever he may recover and receive thereon, to be due and payable only after the same comes into the hands of said Brehm, less all costs, expenses, attorney's fees, and 1 per cent. in addition thereto, in consideration hereof, and of his agreeing to take said claims on the terms herein."
In the assignment, it is stated that on December 6, 1887, the Kansas Construction Company, by its negligence, set and permitted fire to escape from the right-of-way of the Midland Railway Company, thereby burning and destroying property of a certain description and of a stated value. The answer of the railway company was, first, a denial; and, next, that the plaintiff was not the real party in interest and had no capacity to sue; and, third, that the contracts and agreements between him and the parties alleged to have been injured were champertous and contrary to public policy, and that by such agreement the plaintiff had undertaken to prosecute the alleged claims in his own name, and at his own expense, for a part of the proceeds in case of a recovery. The Kansas Construction Company was not served, and did not appear or answer in the case, and no judgment was rendered against it. Brehm recovered upon seven of the claims against the railway company, the total amount of the recovery being $ 635.
It is first contended that Brehm cannot maintain an action upon any of these claims,...
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