Reid v. Hennessy Co.

• Citation: 124 P. 273,45 Mont. 462
• Parties: REID v. HENNESSY CO. et al.
• Decision Date: 09 May 1912
• Court: United States State Supreme Court of Montana

124 P. 273

45 Mont. 462

REID v. HENNESSY CO. et al.

Supreme Court of Montana

May 9, 1912

Appeal from District Court, Silver Bow County; John B. McClernan Judge.

Action by James Reid against Hennessy Company and others. From the judgment sustaining demurrers to the complaint, plaintiff appeals. Reversed in part and remanded.

Alexander Mackel, of Butte, for appellant.

Nolan & Donovan, of Butte, for respondents.

HOLLOWAY J.

This action was brought to recover money due for work and labor performed. The complaint alleges that during October November, and December, 1909, plaintiff worked for the defendant Anaconda Copper Mining Company and earned in such employment $290; that, in order to secure credit for merchandise which he needed, he assigned his claim to the defendant Hennessy Mercantile Company, with the understanding that, when the money was collected, the Mercantile Company should deduct the amount of credit extended and pay over to plaintiff the balance; that plaintiff received but $3 on account of credit extended to him, but that defendant Anaconda Copper Mining Company and defendant Hennessy Mercantile Company each refuses to pay to him any sum whatever. It is further alleged, upon information and belief that the defendant Anaconda Copper Mining Company has paid the money over to defendant Hennessy Company, and that the Hennessy Company refuses to pay the same or any part thereof to plaintiff. Each of the defendants appeared separately by demurrer. The demurrers are in all respects similar. Each demurrer is general and special, and, in addition to challenging the sufficiency of the complaint, attempts to attack it upon the ground of misjoinder of parties and misjoinder of causes of action. The district court sustained the demurrer by the defendant Hennessy Mercantile Company and the demurrer of the defendant Anaconda Copper Mining Company, and overruled the demurrer interposed by defendant Hennessy Company. Plaintiff, refusing to amend or plead further, suffered judgment to be entered in favor of defendants Hennessy Mercantile Company and Anaconda Copper Mining Company, and has appealed. The defendant Hennessy Company answered, and the cause came on for trial; but upon objection the court refused to permit plaintiff to introduce any evidence as against the defendant Hennessy Company, upon the ground that the complaint does not state a cause of action as against that defendant. Thereupon judgment was entered in favor of defendant Hennessy Company also, and the plaintiff has appealed. The only questions presented arise upon the complaint itself.

1. That the complaint states a cause of action in favor of plaintiff and against the defendant Anaconda Copper Mining Company for wages due is not open to dispute. The mere fact that plaintiff assigned his claim to the defendant Hennessy Mercantile Company, as security for merchandise purchased or to be purchased, did not deprive the plaintiff of his title to the money due him or disqualify him from prosecuting an action therefor in his own name. The complaint alleges facts sufficient to show that the Hennessy Mercantile Company has an equitable interest in the claim, to the extent of credit furnished to plaintiff, and therefore that company was properly made a party defendant, to the end that a complete determination of the controversy be had in one action. Rev. Codes, § 6488. The complaint does not state a cause of action against the defendant Hennessy Company, and the trial court ruled properly upon the objection to the introduction of evidence. There is not any privity whatever shown between plaintiff and the Hennessy Company. The fact that the Anaconda Copper Mining Company wrongfully paid the money to the Hennessy Company does not discharge the former defendant or give to plaintiff a cause of action against the latter. The question was set at rest in this state by the decision in Whipps v. Lowney, 42 Mont. 546, 113 P. 750.

There is not any attempt made to state a cause of action as against the ...