Sullivan v. Curling, (No. 1057.)

• Court: Supreme Court of Georgia
• Writing for the Court: GILBERT
• Citation: 99 S.E. 533,149 Ga. 96
• Parties: SULLIVAN et al. v. CURLING.
• Docket Number: (No. 1057.)
• Decision Date: 14 May 1919

149 Ga. 96

99 S.E. 533

SULLIVAN et al.
v.
CURLING.

(No. 1057.)

Supreme Court of Georgia.

May 14, 1919.

Rehearing Denied June 14, 1919.

(Syllabus by the Court.)

Fish, C. J., and Beck, P. J., dissenting.

Certified Questions from Court of Appeals.

Suit by H. B. Curling against W. R. Sullivan, receiver, and others. Judgment for plaintiff, and defendants bring error, and the Court of Appeals certified questions. Questions answered in the affirmative.

The Court of Appeals certified the following questions:

"(1) Is a chose in action founded upon a tort which involves the damage of personal property assignable?

"(a) Where the petition of H. B. Curling shows that a partnership, composed of himself and J. H. McLean, had a right of action sounding in tort against a railroad company for the alleged negligent burning and destruction of a quantity of wood belonging to the partnership, and stacked up on the right of way of the railroad company, and thereafter McLean sold to Curling 'all of his right, title, and interest in and to the assets' of the partnership, and the business was thereafter carried on by Curling in the name of the 'Curling Tie Company' (the partnership name), as a trade-name for H. B. Curling, he being the sole and exclusive owner of all of the assets of the concern, can Curling institute and maintain an action against the railroad company for the entire damage sustained by the partnership in the loss of the wood, or is McLean a necessary party plaintiff in the suit,, or should suit have been brought in the names of both Curling and McLean for the use of Curling?

"(b) Was the petition in this respect good as

[99 S.E. 534]

against general demurrer, or was it subject to appropriate special demurrer?

"(2) If the right of action was assignable, did the petition (in the absence of an appropriate special demurrer, and as against a general demurrer that 'plaintiff's petition sets forth no cause of action which would authorize a judgment against defendant') show such an assignment to the plaintiff by the following allegation: 'On the 1st day of July, 1916, the said J. H. McLean sold out to H. B. Curling all of his right, title, and interest in and to the assets of said partnership; said Curling Tie Company having been operated since said date as a trade-name for the said H. B. Curling, and he being the sole and exclusive owner of all of the assets of said firm'?"

J. W. Quincey and L. E. Heath, both of Douglas, and J. Mark Wilcox and S. D. Dell, both of Hazlehurst, for plaintiffs in error.

McDonald & Willingham, of Douglas, and Newton Gaskins, of Hazlehurst, for defendant in error.

GILBERT, J. [1] The history of the subject of assignments of rights of action begins with the legal theory that rights of action cannot be assigned at all, on the ground that one who claims as the mere assignee of a right of action must fail in the attempt to enforce the right, because he is not in privity with the person against whom the obligation exists. In the course of ages evolution has wrought changes, and the changes have wrought some confusion. Mr. Street, in his admirable work on Foundation of Legal Liability (volume 3, p. 86), after an elaborate and learned discussion of the subject and its history, including a study of the. writings of such ancient authorities as Fleta and Bracton, as well as later writers, including Fitzherbert, Blackstoue, and Joshua Williams, arrives at the conclusion that the following demands, claims, and rights of action are assignable:

"Causes of action arising from the breach of contract of any kind (except breach of contract to marry); causes of action arising from tort | which affect the estate rather than the person of the individual who is injured. Under the latter head are claims arising from the carrying away or conversion of personal property; from the fraudulent misapplication of funds by the officer of a bank; from negligent or intentional injury done to the property or upon real estate." 29 Harvard Law Review, 816; 30 Harvard Law Review, 449.

There are two sections of the Code of Georgia dealing with the assignablity of choses in action, and these must be considered in connection with the common law on the subject. Section 3653 of the Civil Code provides in part:

"All choses in action arising upon contract may be assigned so as to vest title in the assignee."

Obviously the codifiers who prepared this Code had in mind the ancient rule that no chose in action was assignable, and their purpose was to except choses in action arising ex contractu. Authority was delegated to them to prepare a Code "which should, as near as practicable, embrace in a condensed form the Laws of Georgia, whether derived from the common law, the Constitution, the statutes of the state, the decisions of the Supreme Court, or the statutes of England, of force in this state." Since in this section no provision was made for assigning choses in action arising from torts, the law in that regard was unaltered, under the principle, "Expressio unius exclusio alterius." Gamble v. Central R. Co., 80 Ga. 595, 599, 600, 7 S. E. 315, 12 Am. St. Rep. 276. Thus the law remained until the adoption of the Code of 1895. The rule at common law was that—

"Choses in action, except negotiable securities, could not be assigned so as to carry the legal title; and in a court of law any rights in them acquired by other persons than the owner could be enforced only in his name." Western Bank v. Maverick Bank, 90 Ga. 342, 16 S. E. 943, 35 Am. St. Rep. 210; Railroad v. Henderson, 69 Tenn. (1 Lea) 1, 3; Butler v. N. Y., etc., R. Co., 22 Barb. (N. Y.) 110.

This rule of the common law was based upon principles of public policy which forbade the use of the machinery of the courts for any action which savored of champerty and maintenance. In the Code of 1895, § 3079, it is provided that—

"A right of action is not assignable if it does not involve, directly or indirectly, a right of property; hence a right of action for personal torts or for injuries arising from fraud to the assignor cannot be assigned."

This Code was, as a whole, enacted into law by the General...