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(5 Ariz. 10)

SROUFE et al. v. SOTO et al. (Supreme Court of Arizona. Jan. 20, 1896.)

REAL PARTY IN INTEREST.

Under Sess. Laws 1893 (17th Leg. Assem.) p. 26, par. 680, declaring that every action shall be prosecuted in the name of the real party in interest, provided that a trustee of an express trust may sue without joining with him the person for whose benefit the action is brought, and that the assignee of a chose in action is a trustee of an express trust, one to whom a claim is assigned for the purpose of collection only may sue thereon in his own name. Hawkins, J., dissenting.

Appeal from district court, Cochise county; before Justice J. D. Bethune.

Action by Soto Bros & Co. against John Sroufe & Co. on several accounts. Judgment for plaintiffs, and defendants appeal. Affirmed.

Barnes & Martin, for appellants. Heney & Ford, for appellees.

ROUSE, J. This is an action on an account. Plaintiffs had sold and delivered merchandise to defendants, and on that account claimed a balance of $1,399.05. They also claim $1,058.80, balance due on an account due one Charles Noble, and $1,240.78, balance due on an account due J. Leberman & Co. The last two claims mentioned had been assigned to plaintiffs. Defendants, in their answer, deny plaintiffs' right to maintain an action on the two assigned accounts, for the reason that said accounts had been transferred to plaintiffs for collection; that as to said accounts plaintiffs are not the real parties in interest, and cannot maintain the action on said accounts. The right of a party to maintain an action on an account which has been assigned to him for the purpose of collection, only, is the question presented by the record in this case. The Revised Statutes of Arizona of 1887 contain the following:

"Par. 680. Every action shall be prosecuted in the name of the real party in interest, except as otherwise prescribed.

"Par. 681. In the case of an assignment of a thing in action, the action by the assignee shall be without prejudice to any set-off, or other defense existing at the time of, or before notice of the assignment. * *

The statute is plain that every action shall be prosecuted in the name of the real party in interest, and we think that it is equally clear that by the provisions of paragraph 681, supra, in the case of an assignment of a thing in action (an account), the assignee is the real party in interest. Appellants contend that, in this case, as the assignments, though complete ir form, were made only for the purpose of authorizing the appellees to sue thereon, by establishing that fact, the right of action, as to said assigned accounts, could not be maintained. It appears to us that there do rot remain any grounds for that contention, since the amendment to

paragraph 680, enacted in 1893, and found on page 26, Sess. Laws 17th Leg. Assem. Said amendment is as follows: "Every action

shall be prosecuted in the name of the real party in interest, provided, an executor or administrator, or a trustee of an express trust, or a person expressly authorized by statute, may sue without joining with him the person for whose benefit the action is brought. A person with whom or in whose name a contract for the benefit of another is made, and the assignee of any chose in action is a trustee of an express trust, within the meaning of this section." Though it was in fact understood by the parties that the beneficial interests to pass by the assignments were limited, still the plaintiffs, as holders of the legal title of said accounts, could sue for and recover the whole amount thereof. Gradwohl v. Harris, 29 Cal. 150; Allen v. Brown, 44 N. Y. 228; Meeker v. Claghorn, Id. 349; Sheridan v. Mayor, etc., of New York, 68 N. Y. 30; Eaton v. Alger, 47 N. Y. 345; Young v. Hudson, 99 Mo. 102, 12 S. W. 632. The judginent of the district court is affirmed.

BAKER, C. J., concurs.

HAWKINS, J. (dissenting). I agree with my associates in the 1ersoning of the foregoing opinion, but do not think the evidence sufficiently proves the agency of De Long to bind Sroufe & Co., and thereupon think the cause should be reversed, and a new trial granted.

(5 Ariz. 1)

STANFIELD v. ANDERSON. (Supreme Court of Arizona. Jan. 11, 1896.) NEGLIGENCE-INJURY TO TRAVELER ON HIGHWAY.

Where, in an action for personal injuries, plaintiff's evidence was that, while he was on a highway, where it was covered with straw, which deadened the noise of an approaching horse, defendant came towards him from behind, riding at a furious gait, and, without any warning or attempt to turn to either side, rode over plaintiff, it was error to direct a verdict for defendant.

Appeal from district court, Gila county; before Justice Owen T. Rouse.

Action by W. T. Stanfield against Olof M. Anderson for personal injuries. Judgment for defendant, and plaintiff appeals. Reversed.

E. J. Edwards, W. H. Barnes, and J. F. Moriarity, for appellant. Cox & Street, for appellee.

BAKER, C. J. This is an action brought to recover for very serious injuries sustained by the appellant on February 9, 1894, in being run over in a public highway by a horse ridden by the appellee. The charge in the complaint is that, while the appellant was

walking along the public highway, the appellee approached him from the rear on horseback, going in the same direction as the appellant, and so carelessly and so negligently rode the horse that appellant was run over, and thrown to the ground, and his leg broken, etc. Upon the trial, and at the close of appellant's case, and without any testimony being offered in behalf of the appellee, the court, upon his motion, directed a verdict for him. This is assigned as error. In this jurisdiction, in a proper case, we think the court may direct a verdict; but, to authorize such action, the evidence and reasonable inferences to be drawn therefrom must be sufficient to support a verdict in favor of the party having the onus of proof, so that, if such a verdict is returned, the court would feel compelled to set it aside. And, in passing upon the whole question, the judge ought to inquire, not how be hin self would vote as a juror, but, taking the jury as fair-minded men, with their different habits of reasoning and dispositions of judgment, could they reasonably differ upon the question? If they could, no matter how clear the judge is himself upon the question, nor how confident he may be that he could vigorously state and vindicate his impressions, he should send the case to the jury.

Now, the right of a pedestrian and a horseman to use the public highway is equal. They are both alike under reciprocal obligations to exercise ordinary care,-the one, to avoid doing injury; the other, to avoid being injured. Ordinary care is that degree of precaution which ordinary, prudent persons would exercise under like circumstances. The failure to exercise such care is negligence. Negligence is therefore never absolute or intrinsic, but is always relative to the existing circumstances. In this case the evidence is that appellant was walking in the highway; that, just prior to the accident, he had passed over ground where the road was soft, and covered with straw, which subdued or deadened the noise of a rapidly approaching horseman; that appellant approached him from behind, riding at a furious gait, and, without any shout of warning or attempt to turn to either side or to check the horse, rode over appellant. He offers no explanation of his cer duct. If the horse had escaped his control, and was running away, which is not shown by the evidence, he did not offer to explain that it was without his fault. It is a case where a horseman rides a pedestrian down from behind, in the public highway, at a place where his approach was muffled by the condition of the road, and does not consider the circumstance of sufficient moment to require any explanation when called upon to respond in damages. The judge erred in directing a verdict. The judgment is reveised, and a new trial ordered.

HAWKINS and BETHUNE, JJ., concur.

(5 Ariz. 13)

UNITED STATES v. DRACHMAN et al. (Supreme Court of Arizona. Jan. 20, 1896.) DOCUMENTARY EVIDENCE-TRANSCRIPTS FROM WAR DEPARTMENT.

Under Rev. St. U. S. § 886, providing that when suit is brought in a case of the delinquency of any person accountable for public money, or when it involves the accounts of the war department, a transcript from the books of such department, certified by the auditor thereof, and duly authenticated, shall be admitted in evidence, and that all copies of papers connected with the settlement of any account between the United States and an individual, when so certified and authenticated, may be annexed to the transcript, and shall have the same force as the originals, where an action was brought by the United States against one who bid for a contract to supply hay to the war department, and the sureties on the bond accompanying the bid, for the bidder's refusal to comply with the bid, it was error to exclude a transcript so certified and authenticated, in which were included the notice to the bidder of the acceptance of his bid, and copies of the proposed contract, and the bond to secure its performance, which were sent him with the notice, and a letter from him declining to enter into the contract, and an itemized account of the purchases by the government because of the bidder's default.

Appeal from district court, Pima county; before Justice J. D. Bethune.

Action by the United States of America against Philip Drachman and others on a bond. Judgment for defendants, and plaintiff appeals. Reversed.

E. E. Ellinwood, U. S. Atty., for the United States. Barnes & Martin, for appellees.

BAKER, C. J. This action was brought to recover $5,988.16, damages accruing to the United States by reason of Philip Drachman's failing to comply with his bid to furnish certain supplies (hay) for the use of the government at its military post at Ft. Huachuca, in this territory. The appellee Dennis was a guarantor upon the bid of said Drachman. Drachman defaulted, and failed to comply with his bid and the government bought the supplies in open market; the difference between the bid and the price paid for the supplies in open market being the amount claimed as damages in this suit. On the trial of the cause, the appellant offered in evidence a United States treasury transcript, duly certified, under section 885, Rev. St. U. S., showing the following facts: April 1, 1885, Maj. A. J. McGonnigle, chief quartermaster of the department of Arizona, advertised, in accordance with the regulations of the war department, for proposals for military supplies to be furnished during the fiscal year 1886. Among the other supplies for which proposals were asked were 1,400,000 pounds of hay, to be delivered at Ft. Huachuca, Ariz.; the hay to be well and securely stacked, and in the post yard, and wild hay of the best quality in the vicinity of the place of delivery. The advertisement further stipulated that the bidder must state the kind and quality of hay to be furnished,

whether alfalfa, grama, barley, or bottom, and that none but machine or scythe cut hay would be received. In accordance with this advertisement, the defendant Philip Drachman duly submitted his proposal to furnish at Ft. Huachuca, Ariz., 1,400,000 pounds of grama hay, cut with a machine, at the rate of 93 cents per 100 pounds, which quantity, under the proposal, might, at the option of the government, be increased by 20 per cent. should the circumstances of the service require it. Accompanying this bid was the guaranty of defendants John T. Dennis and H. Goldberg binding themselves that, within 10 days after acceptance, the said Drachman would enter into a contract with appellant to furnish said hay, and give a good and sufficient bond, and, if the said bidder failed so to do, that the said guarantors would pay to the appellant the difference in money between the amount of the bid of said bidder and the amount for which the proper officer of the United States might contract with another party for said supplies. Included in this transcript is the notice to defendant of the acceptance of his bid inclosing contract and bond, and the letter of defendant Drachman declining to enter into the agreed contract and to furnish the required bond. Also included in the treasury transcript is the itemized statement and account showing the purchases by the government in consequence of the default of the defendant Drachman. The appellees objected to the introduction of the transcript inainly for the reason that such transcripts are admissible in suits against revenue officers or other persons accountable for public moneys only, and that, appellees being in no such relationship to the government, it is not admissible in the suit. The objection was sustained, and the transcript excluded. The question therefore is, did the court err in ejecting the treasury transcript?

Section 886, Rev. St. U. S., is as follows: "When suit is brought in any case of delinquency of a revenue officer, or other person accountable for public money, a transcript from the books and proceedings of the treasury department, certified by the register and authenticated under the seal of the department, or when the suit involves the accounts of the war or navy departments, certified by the auditors respectively charged with the examination of those accounts, and authenticated under the seal of the treasury department, shall be admitted as evidence and the court trying the case shall be authorized to grant judgment and award execution accordingly. And all copies of bonds, contracts or other papers relating to, or connected with the settlement of any account between the United States and an individual, when certified by the register, or such auditor, as the case may be, to be true copies of the originals on file, and authenticated under the seal of the department, may be annexed to such transcript, and have equal

validity and be entitled to the same degree of credit which would be due to the original papers if produced and authenticated in court." It appears from the statement of facts that an account of the war department is involved in the suit, and that is a sufficient answer to the objection of appellees. A similar ruling is made in the case of U. S. v. Griffith, 2 Cranch, C. C. 366, Fed. Cas. No. 15,263. We also have a precedent arising in this court. Upon a contract to deliver barley to the quartermaster at Ft. McDowell for the use of the government, the contractor defaulted, and suit was brought against him to recover the penalty of his bond. A treasury transcript was introduced in evidence by the government, showing the contract, bond, account, etc., as appearing in the records of the war department. The court said: "This disposes of all of the objections in the case that we should or can properly consid er, but we have, notwithstanding this fact, looked into the record, and find that all of these documents and vouchers were properly authenticated by the propery auditor of the treasury having charge of the accounts of the war department, and are made evi dence by virtue of section 886 of the Revised Statutes. These authenticated copies make out a prima facie case, and it devolves, then, upon the defendant to defeat the same by competent evidence." U. S. v Ellis (Ariz.) 14 P'ac. 300.

It follows that the lower court erred in sustaining the objection to the transcript. and the judgment is therefore reversed, and a new trial ordered.

ROUSE and HAWKINS, JJ., concur.

(56 Kan. 250

PIERCE v. DOWNEY et al. (Supreme Court of Kansas. Jan. 11, 1896.) WRIT OF ERROR-PARTIES.

During the pendency of an action in ejectment the defendants conveyed their inter est to C., subject to a mortgage to P. After judgment against the defendants on a second trial, a new trial was granted. On application of C. and P., the court then made them parties defendant, and gave them time to answer. Held, that in a proceeding in error to reverse the or der of the court granting a new trial C. and P. are necessary parties.

(Syllabus by the Court.)

Error from district court, Pottawatomic county; William Thomson, Judge.

Action by J. B. Pierce against Thomas Downey and others. A. H. Clark and A. B. Pomeroy were made defendants. Judgment for plaintiff. New trial granted. From an order granting defendants a new trial, plaintiff brings error. Dismissed.

Codding & Challis, for plaintiff in erro Hayden & Hayden, for defendants in error.

MARTIN, C. J. On January 9, 1891, on a sec ond trial in ejectment, judgment was render

ed in favor of the plaintiff for lot 15 of block 15 in Butler City. A motion for a new trial was filed January 12, 1891, and a subsequent motion was filed, two days later, including some causes not embraced in the former. On January 17th, upon hearing, a new trial was granted, and the plaintiff, being aggrieved by said order, was given time to make a case for the supreme court. It appears from the record that during the pendency of the action, and on November 26, 1890, the defendants Downey and Cox executed a deed to A. H. Clark for the premises in controversy, subject to a mortgage to A. B. Pomeroy for $2,000. After the order was made granting a new trial, on application of A. H. Clark and A. B. Pomeroy, it was ordered by the court that they be made parties defendant to the action, and that they be allowed to answer within 20 days, to which order of the court the plaintiff excepted. The defendants Downey and Cox now move to dismiss, because Clark and Pomeroy are not made parties to this proceeding in error. It was proper for the district court to allow Clark and Pomeroy to be made parties defendant. Code Civ. Proc. §§ 40, 42. They are interested in sustaining the order of the court granting a new trial, and, having been made parties in the court below, they are necessary parties here. Bassett v. Woodward, 13 Kan. 341; Richardson v. McKim, 20 Kan. 346; Paving Co. v. Botsford, 50 Kan. 331, 332, 31 Pac. 1106, and cases cited; Norton v. Wood, 55 Kan. 559, 40 Pac. 911, and cases cited. The petition in error will therefore be dismissed. All the justices concurring.

(56 Kan. 252)

SHEARER v. WILDER et al. (Supreme Court of Kansas. Jan. 11, 1896.) CONTRACT FOR PURCHASE OF LAND-AUTHORITY OF PURCHASER-MECHANICS' LIENS-VALID

ITY AS AGAINST VENDOR.

The owner of city lots, desiring to secure the erection of houses on a part of the same, agreed with another for the erection of two houses according to certain plans and specifications, at a limited cost, and that upon the completion of the houses, and after they had been freed from all liens, the owner would convey the lots to the purchaser, and take back a mortgage upon the lots so improved for the price of the lots, and also for money furnished by the owner towards the cost of building the houses. The purchaser procured materials and labor, and the houses were built according to the plans and specifications prescribed by the owner; but the purchaser never paid the parties who furnished the materials and labor, and the owner of the lots has never paid any one for the buildings placed on his lots. The lots were never conveyed to the purchaser, and whatever rights he had under his purchase were relinquished to the owner about the time of the completion of the houses. Held, in an action to foreclose the liens claimed against the property, that under the contract of purchase the purchaser was authorized to contract for materials and labor with which to build the houses, and that the laborers and material men were entitled to a lien against the property, and all of the legal and equitable interest of the owner therein. (Syllabus by the Court.)

Error from circuit court, Shawnee county; J. B. Johnson, Judge.

Action by John D. Shearer against Edward Wilder and others to enforce mechanics' liens. To the judgment rendered, all parties, except defendant Wilder (who brings cross error) and defendant McCann, bring error. Modified and affirmed.

John D. Shearer brought an action to recover for labor performed in the construction of two dwelling houses upon property, the title of which was in Edward Wilder. Wilder and several other persons, who were contractors and lien claimants, were made parties defendant, each of whom set forth his claim in appropriate pleadings. A trial was had before the circuit court of Shawnee county, without a jury, and upon the testimony produced the following findings of fact and conclusions of law were made:

"(1) On the 16th day of July, 1889, Edward Wilder, being the owner in fee simple of an addition to the city of Topeka, and of the lots described in plaintiff's petition, entered into a contract with one S. W. McCann, a copy of which said contract is attached to Wilder's answer in this case, which is made a part of this finding of fact, to wit: "This contract, made in duplicate this sixteenth day of July, 1889, between S. W. McCann and E. Wilder, both of Topeka, Kansas, witnesseth, that, in consideration of the agreement of the said Wilder hereinafter specified, the said McCann hereby agrees to construct upon lots in Wilder's addition to the city of Topeka, to be selected by the parties hereto, two houses, to cost not less than $2,500 nor more than $3,000.00 each, of general design to be approved by said Wilder, and according to plans and elevations agreed upon and marked "E. W.," and upon completion of said houses, and upon payment of the amount hereinafter stipulated to be paid by said Wilder, said houses are to be clear and free from any mechanics' or other liens. The said Wilder agrees, for the sake of securing said erections of said houses in his addition, to furnish and pay towards the cost of said houses the proportion of $1,000 for a house costing $2,600, said payment to be made by him to said McCann upon the completion of said house or houses, and only upon condition that at the time of said payment said house or houses are free and clear of any mechanics' or other liens, or any liabilities whatever for labor or material; and upon completion of said houses, free and clear, as above, the said Wilder is to make a good and sufficient deed, general warranty, to said McCann or his assignee, and to take from said McCann or his assignee a mortgage for the amount of money advanced and paid by the said Wilder as above towards the cost of said house or houses, and for the listed value of said lots, at $500 per lot, or $1,000 on each house; said mortgage or mortgages to run for five (5) years at eight per cent. interest, payable semiannually, and, at the election of said Wilder, shall be made

either in one mortgage, to cover cash advanced and the price of the lots, or in a first mortgage for the cash and a second mortgage for the price of the lots. In witness whereof, we have hereunto set our hands the day and year above written. S. W. McCann, 1116 Tyler St. E. Wilder.' (2) On the said date, July 16, 1889, the said Wilder and McCann agreed upon the plans and elevations referred to in said contract, and marked the same 'E. W.,' and at the same time agreed upon specifications in writing, in pursuance of which the houses agreed to be built in said contract were to be built. (3) About the same time the said Wilder and McCann selected, as the lots upon which said houses were to be built, lots numbered 481, 483, 485, 487, on Logan street, in Wilder's addition to the city of Topeka, Shawnee county, Kansas. (4) That thereafter, on about the 17th day of July, 1889, the said defendant Cyrus Goddard agreed with the said S. W. McCann to build said houses upon said lots, in accordance with the said plans, elevations, and specifications, at an estimated cost of about $2,000, or about $1,000 per house. (5) That thereafter, on or about the 18th day of July, 1889, the said Goddard, in pursuance of his agreement with said McCann, commenced the construction of said houses, and completed the same on the 28th day of September, 1889. (6) That said Goddard built said two houses in accordance with plans, elevations, and specifications therefor, as the same were agreed upon by Wilder and McCann. (7) That Goddard purchased materials to be used, and which were used, in the construction of said houses, and employed men to perform labor upon, in, and about the same, as appears from Exhibit A, attached to his lien statement herein, and as will more fully appear from the petition of the plaintiff and cross petitions of the other defendants herein. (8) That there is due and owing to said Goddard, under his agreement with said McCann for building said two houses upon said lots, the sum of $2,154.27, with interest thereon from September 28, 1889, and that said two houses are of the value of $2,154.27. (9) That there is due to the following named persons the sum set opposite the name of each, for work and material furnished by such persons in the erection of the buildings aforesaid as subcontractors with said Goddard, to wit: John D. Shearer, $59.20; J. W. Stout & Co., $105.15; Owen McKernan, J. T. Hampton, $153.40; J. Thomas, $927.35; Frank Hamm, $148.18; John Billodeau, $89.07; A. Boies, $66.40; H. F. King, $114.35; Cynthia Robbins, as administrator, $36.90; John Speer, $198.90; Cyrus Goddard, $2,384.04, less $1,898.80 due subcontractors and material men. (10) That on or about the said 29th day of September, 1889, the said Wilder and McCann entered into and executed the writing which is attached to the amended lien statement of the said Goddard, filed with his amended answer and cross petition herein, and is marked 'Exv.43P.no.2-15

hibit C'; and said writing is made a part of this finding of fact, to wit: This instrument, made this day of September, 1889, between S. W. McCana, party of the first part, and Edward Wilder, party of the second part, both of Topeka, witnesseth, that whereas, heretofore, on the sixteenth day of July, 1889, a contract was entered into between said parties concerning certain lots therein mentioned, and a conveyance of the same; and whereas, the said S. W. McCann finds himself unable to fully comply with the terms and conditions of said contract, and to carry out the same; and whereas, the said S. W. McCann desires to be released from the obligations in said contract, and to release said Edward Wilder from the obligations therein to said S. W. McCann or assigns: Now, therefore, it is hereby agreed and understood by the parties that the said contract heretofore mentioned shall he annulled and abrogated, and that the said Edward Wilder shall wholly be released and discharged from the obligations contained in said contract towards said McCann or assigns, or from any liability therein, and from the obligations of making payments in said contract to the said S. W. McCann, or advancing any money as a loan specified therein, or from making any conveyance of any lands as specified in said contract, and the said S. W. McCann is discharged from the further performance of said contract. In witness whereof the said parties have hereunto set their hands the day and year above written. E. Wilder. S. W. McCann.' (11) That thereafter the said Goddard and the said plaintiff, John D. Shearer, and each and all of the other defendants herein, in the time prescribed by law, duly filed their lien statements, duly verified, and said statements were in accordance with all the statutory requirements, and notices in writing of the filing of the same at the time were duly served by the respective lien claimants upon the said defendants Wilder and McCann, except the claim of Goddard. A copy of the amended lien statement of Cyrus Goddard is made a part of this finding of fact, the same being attached to the amended cross petition of said Goddard filed herein. (12) That the said Wilder never has paid the said McCann anything for said houses so built on said lots, and that the only consideration of the contract of the said Wilder and McCann, referred to in finding numbered 10, was their mutual promises and releases, just as in said writing set forth. (13) That during the erection of said two houses on said lots the said Wilder visited the premises once, when the plastering was being put on the last one thereof which was built, and when they were completed he examined and went through both of said houses. (14) That the value of said lots described in plaintiff's petition, before said two houses were built thereon, was $250 per lot, or the total sum of $1,000; that said lots were enhanced in value

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