Phillips v. City Of Portsmouth

• Decision Date: 09 March 1911
• Citation: 70 S.E. 502,113 Va. 164
• Court: Virginia Supreme Court
• Parties: PHILLIPS. v. CITY OF PORTSMOUTH.

70 S.E. 502

113 Va. 164

PHILLIPS.

v.CITY OF PORTSMOUTH.

Supreme Court of Appeals of Virginia.

March 9, 1911.

Action (§ 53^*)—Splitting Causes of Action.

An assignee of a part of the sums claimed to be due a water company for several years added together, under a contract between the company and the city, may not without the consent of the city sue for such part without making the company and its assignees of the other part parties plaintiff, within the rule that a single cause of action arising on an entire contract cannot be divided by partial assignment so as to enable each assignee to sue for the part assigned.

[Ed. Note.—For other cases, see Action, Cent. Dig. §§ 549-623; Dec. Dig. § 53.*]

Appeal from Circuit Court of City of Portsmouth.

Action by one Phillips against the City of Portsmouth. From a judgment for defendant, plaintiff appeals. Affirmed.

R. Randolph Hicks and John G. Tilton, for appellant.

Jno. W. Happer and Frank L. Crocker, for appellee.

KEITH, P. This was an action of assumpsit brought by Phillips against the city of Portsmouth to recover a sum of money alleged to be due. The declaration contained two special counts and the counts in assumpsit. The city of Portsmouth filed a demurrer and assigned grounds of demurrer as to the two special counts, which the court sustained; and thereupon the plaintiff withdrew his general counts in assumpsit. A judgment was rendered for the defendant, and the case is before us for review.

We shall state only so much of the two special counts as essential to an understanding of the conclusion at which we have arrived.

The Portsmouth & Suffolk Water Company entered into a contract with the city of Portsmouth to supply it with water, the city agreeing to pay at the rate of $75 per hydrant per annum during the first 10 years of the contract, and for the next 10 years the sum of $50 per hydrant per annum for each hydrant then or thereafter set by the authority of the city of Portsmouth within its corporate limits. It was provided in this contract that, if at any time while it remained in force the city of Portsmouth should impose a tax on the property or works of the water company necessary for the supplying of water under its contract, then the annual rental should be increased to an amount equal to the city tax, levies, or assessments so imposed. It is alleged that the water company faithfully performed its duties, and that during the years 1901, 1902, 1903, and 1904 city taxes were imposed at the rate of $1,312.50 for each of said years, amounting in the aggregate to $5,250 on the capital stock of the water company, which capital stock was invested in and represented by the property and works of the company necessary for the supply of water, and that, by reason of the imposition of said taxes, the city of Portsmouth, by virtue of its contract, became indebted to the Portsmouth & Suffolk Water Company in the aggregate sum of $5,250. It appears from the declaration that on the 16th of January, 1905, the Portsmouth, Berkley & Suffolk Water Company, which had succeeded to the rights of the Portsmouth & Suffolk Water Company, assigned to T. J. Wool $5,142.62 of its claim against the city of Portsmouth, and Wool thereafter assigned to A. J. Phillips one-half of said sum of $5,142.62; that is to say, the sum of $2,571.31. The two special counts are identical in the respects above mentioned.

Six grounds of error were assigned, only one of which we find it necessary to discuss, which is as follows: "That it is alleged in the declaration that the plaintiff is the assignee of only one half of the said several sums alleged to be due by the...