Smith v. Kennett
| Decision Date | 31 March 1853 |
| Citation | 18 Mo. 154 |
| Parties | SMITH, Plaintiff in Error, v. KENNETT & KENNETT, Defendants in Error. |
| Court | Missouri Supreme Court |
1. Under the new code, a right of action for the conversion of property may be assigned, so as to enable the assignee to sue in his own name.
2. A demand, however, is essential to the assignee's right of action.
Error to St. Louis Court of Common Pleas.
This was an action brought by John F. Smith against Luther M. & Mortimer Kennett, to recover damages for the alleged conversion of the wreck of the steamboat Jewess, whieh was sunk at the St Louis levee, on the first day of January, 1852. The petition alleged that the wreck was taken possession of by Mortimer Kennett, harbor master, under the direction of Luther M. Kennett, mayor of the city of St. Louis, on the 3d of January, 1852, by virtue of some pretended authority derived from a city ordinance. At the time the wreck was thus taken possession of, she belonged to John S. Sloan, who, on the 18th of March, 1852, conveyed and assigned to the plaintiff all his interest in said wreck and claim for damages against the defendants. No demand was alleged in the plaintiff's petition. The Court of Common Pleas sustained a demurrer to the petition.
B. A. Hill, for plaintiff in error.
The assignee of property converted, and of the right of action therefor, can maintain an action in his own name. Article three section one of the code, requires the suit to be brought in the name of the real party in interest. No demand is necessary where there has been a conversion.
Glover & Richardson, for defendants in error.
I. The petition shows that the boat was not in esse at the time of the assignment, and nothing was left to the owner but a naked cause of action, sounding in damages, which could not be transferred to the plaintiff so as to give him a right of action in his own name.
II. If the property was in existence, the plaintiff could only maintain an action after demand and refusal, and none is alleged in the petition. (Gardner v. Adams, 12 Wend. 298; Hall v. Robinson, 2 Coms. 294.)
1. Can the assignee of property converted and of the right of action therefor, maintain an action in his own name for the property and for damages? The new code requiring the suit to be brought in the name of the real party in interest, would, it seems to us, sanction the bringing of this action in the name of the assignee. In the case of Gardner v. Adams, 12 Wend., 297, it was held by the Supreme Court of New York, that a right of action for a tort is not assignable. In this case, the court uses the following language: “Hard, at the time, had a right of action for the bureau, but that right of action is no more assignable than a right of action for any other tort--an action of trespass, for instance, or an assault on the person.” The same doctrine is laid down in the case of The People, ex relatione Stanton v. Tioga C. P., 19 Wend. 73; but in this last case, the tort was merely personal. The doctrine of Gardner v. Adams was overruled in Robinson v. Weeks, 6 How. Prac. 162. In this case of Robinson v. Weeks, the court remarked, “that a tort for the taking and conversion of personal property may be assigned. It is a right which passes to an executor or administrator, and I think there can be no doubt that it may be lawfully assigned, so as to vest the assignee with all the rights the assignor had, at the...
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The Connecticut Mutual Life Insurance Company v. Smith
... ... through fraud, was vendible under execution ... In an ... early case it was held that under the new code a right of ... action for the conversion of property was assignable, and ... that the assignor could sue in his own name. Smith v ... Kennett , 18 Mo. 154. See also Melton v. Smith , ... 65 Mo. 315, and cases cited. In the cases of Snyder v ... Railroad , 86 Mo. 613, and Doering v. Kenamore , ... 86 Mo. 588, it was decided that under the code a right of ... action arising from a tort to property was assignable. Some ... ...
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