Vaughan v. Davenport

• Decision Date: 15 May 1912
• Citation: 74 S.E. 967,159 N.C. 369
• Court: North Carolina Supreme Court
• Parties: VAUGHAN et al. v. DAVENPORT.

74 S.E. 967

(159 N.C. 369)

VAUGHAN et al.

v.DAVENPORT.

Supreme Court of North Carolina.

May 15, 1912.

1. Assignments (§ 18*) — Rights Assignable—Executory Contracts.

A cotton contract, in writing and reciting a consideration, by which a seller covenants and agrees to deliver a certain quantity and quality of cotton to the buyer, and by which the buyer is to pay a certain price, providing for tender and acceptance and for damages for the seller's failure to deliver, is a chose in action and assignable.

[Ed. Note.—For other cases, see Assignments, Cent. Dig. §§ 25-27; Dec. Dig. § 18.*]

2. Assignments (§ 121*)—Action—Suit in Name or Assignee.

Under the rule that every action must be prosecuted in the name of the real party in interest, the assignee of a chose in action must sue in his own name, and not in the name of the assignor.

[Ed. Note.—For other cases, see Assignments, Cent. Dig. §§ 200-205; Dec. Dig. § 121.*]

3. Dismissal and Nonsuit (§ 68*)—Time for Motion—After Verdict.

Under the Hinsdale Act (Revisal 1908, § 539), a motion for nonsuit cannot be made after verdict.

[Ed. Note.—For other cases, see Dismissal and Nonsuit, Cent. Dig. §§ 163, 176; Dec. Dig. § 68.*]

4. Appeal and ESrror (§ 1106*)—Disposition of Cause—Remand for New Trial.

In an action for damages for the seller's failure to perform a contract to deliver cotton, brought by the buyer and his assignee, where there is evidence of the assignment of the contract to one not a party to the action, so that the seller, notwithstanding a recovery, might be exposed to an action by such other party, and where it would be a miscarriage of justice to permit the plaintiffs to recover, the court, of its own motion, will remand the cause, with order for a new trial.

[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 4386^398, 4585; Dec. Dig. § 1106.*]

On petition for rehearing.

For former opinion, see 72 S. E. 842. Petition allowed, former opinion modified, and new trial ordered.

The cotton contract referred was as follows:

"State of North Carolina, Pitt County:

"This agreement made this the 19th day of April, 1909, by and between Moseley Brothers, of Greenville, N. C, parties of the first part, and J. R. Davenport, of Pactolus, Pitt county, and state of North Carolina, party of the second part, witnesseth: That the said J. R. Davenport, for and in consideration of the sum of one dollar to him in hand paid by the said Moseley Brothers, the receipt whereof is hereby acknowledged, bargains, covenants and agrees to and with the said Moseley Brothers, that he will deliver to the said Moseley Brothers, their heirs, executors or assigns fifty thousand pounds of lint cotton, at railroad depot or steam landing at Pactolus, N. C., during November next, said cotton to be packed in regulation bales and to average in weight as near five hundred (500) pounds per bale as possible, and to be graded according to the New York Cotton Exchange standard or classification. That the said Moseley Brothers agree to pay the said J. R. Davenport on the delivery of said cotton at the rate of ten (10) cents per pound, middling and better. The said Moseley Brothers on their part agree to accept said cotton when so delivered and to pay therefor at the price hereinbefore mentioned. That, if any part of said cotton shall be tendered before delivery of the whole can be completed, then the parties of the first part shall accept such tender, paying to the party of the second part whatever amount may be due for the quantity received. That, in event party of the second part shall fail to deliver the said cotton, or any part thereof, according to this contract, then the parties of the first part shall be entitled to recover at law, and shall recover damages for such failure of the party of the second part, his executors or assigns. The measure of damages for such failure, or part thereof, shall be calculated at the highest price in the above-mentioned market on any day during November, 1909, with interest on such amount from December first. In witness whereof, said Moseley Brothers and J. R. Davenport have hereunto set their hands and seals, this the day and year first above written. [Signed] Moseley Brothers. [Signed] J. R. Davenport. Witness: Alex L. Blow, Jr. Witness: J. P. Davenport. [Signed in duplicate.]"

BROWN, J. Upon the former hearing of this case, it was held by the court that the plaintiffs could not recover, because it affirmatively appeared that the plaintiffs had assigned the contract for the purchase of the cotton to Hogan & Co., who are not parties to this action; and upon that ground it was held that the motion of the defendant fornonsuit should have been granted, on the ground that the evidence discloses that the plaintiffs were not the owners of the claim sued on.

It is contended by the plaintiff upon the rehearing that there is no evidence that Vaughan & Barnes, the plaintiffs, have assigned the contract for the purchase of the cotton entered into by the defendant to Hogan & Co., but that the evidence is that Vaughan & Barnes contracted to sell the cotton to Hogan & Co., but did not assign the contract; and that therefore Vaughan & Barnes may still sue for a breach of the contract.

Upon re-examination of the record, w...