Wallen v. St. Louis, Iron Mountain & Southern Ry. Co.

• Decision Date: 31 October 1881
• Court: Missouri Supreme Court
• Parties: WALLEN v. THE ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY, Appellant.

74 Mo. 521

WALLEN

v.THE ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY, Appellant.

Supreme Court of Missouri.

October Term, 1881.

Appeal from St. Francois Circuit Court.--HON. W. N. NALLE, Judge.

REVERSED.

Wm. R. Donaldson and Smith & Krauthoff for appellant.

The cause of action against defendant was not assignable. The allegation of the petition is a wrongful conversion of the ties by defendant, and the action is one of trover. This action is one that sounds in tort, and does not arise out of contract. Cooley on Torts, 441; Hill. Rem. for Torts, (2 Ed.) p. 6, § 7, p. 283, § 2; 1 Hill. on Torts, (4 Ed.) p. 487; 2 Hill. on Torts, (4 Ed.) p. 26; 1 Wait's Prac., p. 6; Burroughes v. Bayne, 5 Hurlst. & N. 296; Ederlin v. Judge, 36 Mo. 350; Hoagland v. Railroad, 39 Mo. 451, 457; Ireland v. Horseman, 65 Mo. 511; Cobb v. Dows, 9 Barb. 230, 245; Eggleston v. Mundy, 4 Mich. 295, 304; Stevens v. Bank, 31 Conn. 146. Where personal property is wrongfully converted, the owner has thereafter no such interest as can be the subject of a transfer, so as to authorize his assignee to maintain an action for such conversion in his own name. The owner's interest is simply a right to sue, or chose in action, and it is against the policy of the law to permit this right to be assigned. Davis v. Herndon, 39 Miss. 484, 504; McGoon v. Ankeny, 11 Ill. 558; Dunklin v. Wilkins, 5 Ala. 199; Gardner v. Adams, 12 Wend. 297; Oliver v. Walsh, 6 Cal. 456; Patten v. Wilson, 34 Pa. St. 299. Our statute puts this question beyond controversy. It provides that the section requiring actions to “be prosecuted in the name of the real party in interest,”“shall not be deemed to authorize the assignment of a thing in action not arising out of contract.” R. S., § 3462.

John F. Bush for respondent, filed no brief.

HENRY, J.

The amended petition, on which this cause was tried below, alleged that in the months of November and December, 1870, one E. B. Wallen cut and stacked along the line of defendant's road, in Iron county, 700 double railroad cross-ties, of the value of fifty cents per tie, and the same number of single railroad ties, of the value of thirty-five cents per tie; that they were cut and delivered in pursuance of an agreement between said Wallen and one Dingle, who had a contract with defendant for furnishing ties for defendant, and Dingle was to pay said Wallen for said ties the prices above stated, on delivery, but that after said agreement, Dingle broke the agreement and left the county; that afterward defendant, during the years 1871 and 1872, took said ties and used them; that before defendant took the ties, or about that time, Wallen, for good and sufficient consideration, transferred and assigned the ties, and all his right, title and claim to said ties, and his claim against defendant for taking and using them, to C. C. Grider, (who was the original plaintiff in this suit;) and that since the commencement of the action by him, he has transferred, sold and assigned and delivered his claim, on account of said ties, against defendant to the present plaintiff, H. Clay Wallen, who asks judgment for the value of the ties.

If the seizure and conversion of the ties...