National Advertising Co. v. Sayers
| Decision Date | 31 October 1960 |
| Docket Number | No. 19114,19114 |
| Citation | 144 Colo. 356,356 P.2d 483 |
| Parties | NATIONAL ADVERTISING COMPANY, a Corporation, Plaintiff in Error, v. Hugh SAYERS and Sayers Brothers, d/b/a Sayers Motor Company, Individuals, Defendants in Error. |
| Court | Colorado Supreme Court |
Charles S. Vigil, Denver, for plaintiff in error.
Carmel A. Garlutzo, Trinidad, for defendants in error.
In the trial court plaintiff in error was plaintiff and defendant in error was defendant. We shall refer to the parties as they there appeared.
Plaintiff's demand, according to the amended complaint, was for $374.40 for alleged 'services rendered to the defendants.'
By answer defendants entered a general denial. At the conclusion of plaintiff's case the trial court dismissed the action, and plaintiff brings the case here on writ of error.
From the record it appears that in 1948 defendants entered into a written contract with Empire Advertising Company, Inc., for the erection and maintenance of certain advertising signs. Payment was to be made in installments. The written contract with the Empire Company was introduced in evidence by plaintiff, but no competent evidence of an assignment of the contract or claim to the plaintiff, if such be the case, was produced.
Rule 17(a), R.C.P.Colo., provides that every action shall be prosecuted in the name of the real party in interest. Here the only fact plaintiff attempted to prove was that a contract existed between Empire and defendants.
In oral argument counsel for plaintiff stated that all the stock of Empire had been acquired by plaintiff. There is no evidence of this in the record. Furthermore the ownership of the stock of Empire by plaintiff does not constitute an assignment of its rights against defendant. The burden of proving an assignment is upon him who claims thereunder. Agate Irrigation & Land Co. v. Sigman, 83 Colo. 464, 266 P. 209; 4 Am.Jur. § 128, p. 331; 6 C.J.S. Assignments § 143, p. 1204. This is Hornbook law.
Plaintiff's counsel also urges that defendants are estopped 'from alleging any new facts.' No estoppel was pleaded, and certainly no new facts were elicited or attempted to be proved by defendants. It was plaintiff's evidence which unequivocally established that no assignment of the claim was ever made, and had recovery been had against defendant in the present action, Empire would not be barred from later bringing an action on the written contract, for so...
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Simon v. Shearson Lehman Bros., Inc.
...In general, the party that relies on an assignment has the burden of proving its existence and validity. National Advertising Co. v. Sayers, 144 Colo. 356, 357, 356 P.2d 483, 483 (1960) (idea that party who claims under an assignment has the burden of proving the assignment is "Hornbook law......
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Goodwin v. District Court In and For Sixteenth Judicial Dist.
...the real party in interest. Such an interpretation of Rule 120 is consistent with our prior decision in National Advertising Co. v. Sayers, 144 Colo. 356, 356 P.2d 483 (1960), where we held that the fact that the plaintiff in a breach of contract action had acquired all the corporate stock ......
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Delta Traffic Service, Inc. v. Sysco Intermountain Food Services, Inc.
...it is well established that "[t]he burden of proving an assignment is upon him who claims thereunder," National Advertising Co. v. Sayers, 144 Colo. 356, 357, 356 P.2d 483 (1960); accord, Bank of Salt Lake v. Corporation of President of Church of Jesus Christ of Latter-Day Saints, 534 P.2d ......
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Thistle, Inc. v. Tenneco, Inc.
...the extent that those agreements created any rights, they related to interests in property. Likewise, in both National Advertising Co. v. Sayers, 144 Colo. 356, 356 P.2d 483 (1960) and Alpine Associates, Inc. v. KP & R, Inc., supra, the plaintiff, although challenged upon the point, simply ......