#### Robbins vs. Deverill.

*Statute of frau&s*— Pleading—Stamp—Trustee *of express trust*— Suit *by real party in*interest— *Waiver of objection.*

1. In pleading a contract which the statute of frauds requires to he in writing, it is sufficient to aver that the contract was made, and this will be held, on demurrer, to imply that it was in writing, and valid under the statute.

2. Where an instrument was delivered without the stamp required by act of Congress, *it seems*that upon being returned to the maker and by him redelivered with stamp duly canceled, it would have taken effect from the date of such redelivery in the absence of any act of Congress like that of June 30, 1861, which cured the defect in the first execution.

3. Where a claim is assigned to one member of a firm, in payment of a debt due the firm, but without express words of trust, is such partner a “ trustee of an express trust,” within the meaning of the statute (R. S., ch. 122, sec. 14), so that he cau maintain an action upon the claim ? Discussed per Dixon, C. J., (who answers in the negative), but not decided.

4. The objection that plaintiff is not the real party in interest, if not taken by demurrer or answer, is waived; and the effect of such waiver is not destroyed by proof at the trial (even without objection) of the interest of other parties.

Dixon, C. J., (dissenting as to this point,) is of opinion that where it appears from plaintiff’s evidence, or from defendant’s evidence without objection, that the plaintiff is not the real or sole party in interest, the action should be dismissed; but where the proof is made and the appeal taken by the defendant, it cannot be presumed by the appellate court that the evidence was not duly objected to by the plaintiff.

APPEAL from tbe Circuit Court for *Winnebago*County.

Tfre complaint alleges that, on &c., the defendant bought of Peet & Williams, at Menasha in this state, one hundred barrels of flour, marked &c., for which the defendant then and there, in consideration of such sale, promised to pay them $4.80 per barrel, on delivery of the same; that the same was to be delivered by said Peet & Williams by shipment thereof by water from Menasha to Green Bay for defendant; that said flour was delivered, on &c., by such shipment; that defendant has been often requested but has refused to pay for said flour ; that, on &c., said Peet & Williams, for a valuable consideration, duly assigned to the plaintiff the indebtedness of the defendant to them for said flour, of which defendant had due notice before the commencement of this action; and that there is now *143due tbe plaintiff from defendant for said flour $480, witb interest, &c. Tbe defendant answered denying, on information and belief, that tbe indebtedness mentioned in tbe complaint was at any time assigned by said Peet & Williams to tbe plaintiff, and alleging that said indebtedness was, at tbe commencement of tbe action, and continued to be, tbe property of said Peet & Williams ; that plaintiff was not tbe party in interest in tbe action, but that said Peet & Williams were tbe real parties in interest. Tbe answer tben set up a counter-claim. There was a reply in denial of such counter-claim.

On tbe trial, tbe defendant objected to tbe introduction of any evidence under tbe complaint, on tbe ground that it did not state a cause of action. Objection overruled. Tbe plaintiff proved tbe execution of a written assigmnent to him, by Peet *&*Williams, of their- claim. On cross-examination of tbe witness, it appeared that at some time after tbe delivery of tbe assignment to tbe plaintiff, it was without any stamp. The plaintiff tben proposed to show “ tbe manner in which stamps were put on tbe paper,” and an objection by tbe defendant was overruled. Tbe witness, who was an attorney for tbe plaintiff, testified: “ I returned tbe paper to Peet for him to cancel tbe stamp which I bad placed on it. Soon after, I received it from him in tbe condition it now is. This was after I bad shown tbe paper to tbe defendant. Tbe stamps were put on before suit was commenced.” Plaintiff, as a witness in bis own behalf, testified that tbe consideration of tbe assignment to him was a balance of a grain account due him, exceeding tbe amount of this claim against tbe defendant. On cross-examination be said: “ Peet & Williams owed me for grain sent them from Pond du Lac. I was tben in business at Pond du Lac. At tbe time of tbe arrangement [assignment] I bad two partners. I was buying wheat on joint account witb E. M. Lewis and also my brother. * * Think this wheat to Peet & Williams was sold on account of Eobbins & Lewis. My brother and myself have a half interest in tbe business of that *144firm. I have not credited anything to Peet & Williams on our company books on account of this claim. I was not to credit the amount to them till collected.” The account assigned to plaintiff was in the following form:

“ 1868. H. Deverill, Dr.

Nov. To 100 bbls. flour marked Eclectic Mills XXX,

and shipped to your order, Green Bay, - $480.00

To interest on $480.00, 30 days,. 3.00

$483.00

The assignment was as follows : “ For fall value paid us in hand, we hereby bargain, sell and assign the foregoing account to A. Bobbins, guaranteeing $483 due on the same. Neenah, Dec. 2, 1863. (Signed) Peet & Williahs.”

A shipping bill, showing the shipping of said flour at Menasha to the defendant at Green Bay, at the time alleged in the answer, was attached to the account, but does not appear from the printed case to have been offered in evidence. The defendant moved for a nonsuit, on the grounds, 1. That plaintiff had not shown any interest in the demand sited, except in connection with his eo-partners. 2. That the evidence did not sustain the complaint 3. That the assignment was void because it had not been stamped as required by law. Motion denied.

The defendant asked, but the court refused, the following instructions : ‘1 That the jury must find that the flour was actually shipped and delivered to defendant by Peet & Williams, free from all liens and charges for freight, storage &c., or vendor’s lien for the price, and that the same was, after sufficient time given for the purpose of inspection &c., accepted by defendant, or plaintiff could not recover. 2. If Bobbins & Lewis were the owners of the claim against Peet & Williams, then the plaintiff was not the real party in interest, and could not recover. 3. If the assignment from Peet & Williams was not stamped when delivered, the plaintiff had no right to stamp it until he paid the collector of the district in which the court was held, five *145dollars, wbicb was not done in this case.” The court instructed the jury that “ the answer admitted the delivery of the flour, and its acceptance by the defendant; that an existing indebtedness of the assignor of a thing in action, in which the plaintiff is interested as an entire or part owner of the same, is a sufficient consideration for the assignment of the account; and that there need be no consideration for the assignment to enable the plaintiff to maintain an action as assignee of an account, unless such assignment in some way interferes with some defense to the action upon such account in the name of such assignee.”

Verdict and judgment for the plaintiff; and the defendant appealed.

*C. Goolbaugh,*for appellant,

argued that under the statute of frauds (R. S., ch. 107, sec. 8), the complaint was insufficient, because it did not show that there was any memorandum of the alleged sale in writing, subscribed by the party to be charged, nor that any part of the purchase money was paid, nor that there was any receipt and acceptance of the goods or any part thereof. 2 Parsons on Con., 820; *Corning v. Colt,*5 Wend., 254. The court erred, therefore, in receiving any evidence under the complaint. It also erred in refusing the instructions asked by the defendant on this point. To constitute a delivery of goods sold, to take the case out of the statute, there must be a transfer by the seller of the possession and control, with the purpose and effect of putting the goods out of his hands. *Howe v. Palmer,*3 B. & Aid., 321; *Billv. Bament,*9 M. & W., 41; *bhindhr v. Houston,*1 Corns., 261; 3 Parsons on Con. (5th ecL), 41; 3 Phillips Ev. (new ecL), 366; Story on Sales, sec. 276 et seq. 2. The answer does not admit the delivery of the flour and defendant’s acceptance of it. It makes no admissions in terms ; and there is no allegation in the complaint that the defendant accepted. Sec. 31, ch. 125, E. S. 3. The shipping bill attached to the account was not offered in evidence. It was not of itself, until proved, evidence of any fact, and there was no proof of its genuineness. *Horneffer v.**146Duress, 13 Wis., 603. Besides, it would bave been at most only-evidence of a delivery to the carrier, and be was not tbe defendant’s agent. 4. In contracts for future delivery, tbe buyer bas tbe right to examine tbe goods to ascertain their quality before be determines whether to accept them or not, and a retention by him for a time sufficient to enable him to do this is not an acceptance of the goods. 2 Parsons on Con., 325, and authorities cited in note (o). 5. Tbe evidence shows that tbe plaintiff is not the real party in interest, but that bis brother and Lewis should have been joined with him as plaintiffs. *Secor v.*Keller, 4 Duer, 416 ; *Kimball v. Spicer,*12 Wis., 668. 6. The assignment was void for want of a proper revenue stamp. Edwards on Bills (2d ed.), 711; Act of Congress, Julv 1, 1862, sec. 95.

*Moses*Hooper, for respondent,

to tbe point that the objection to the want of proper parties plaintiff came too late, cited R. S., cb. 125, sec. 9; *Carney v. La Crosse & Mil. B. B.,*15 Wis., 508; *Hadcettv. Bonnell,*16 id., 476; 15 Barb., 331. Sec. 14, chap. 122, R. S., exjrressly authorizes tbe action in tbe name of tbe plaintiff. He is a person with whom and in whose name a contract bas been made for the benefit of another. The history of the enactment of this-'?section (sec. 113 of N. T. code), and the judicial decisions upon it, show that it was intended to apply to such a case as this. Voorhies’ N. Y. Code, sec. 113 and notes; 2 Sandf., 706 ; 15 Barb., 331.

DixoN, 0. J.

It was a settled rule before tbe enactment of the code, that in pleading a contract which tbe Statute of Frauds requires to be in writing, it was not necessary to allege tbe facts relied on to take the case out of the statute. The same rule still prevails. See Abbott’s Dig., Title, “Pleading under the Code of Procedure,” §921, and cases cited. Itis sufficient, on demurrer, to allege that a contract was made. Such an allegation implies that tbe contract is in writing, and valid under the statute. The complaint in this case avers a delivery of the *147flour according to the terms of the sale, by shipment of the same by water from Menasha to Green Bay. The presumption being that the contract of sale was in writing, and subscribed by the defendant as required by the statute (sec. 8, ch. 107, R. S.), the delivery to the carrier at Menasha was a delivery to the defendant according to the terms of the written contract, and no question of the receipt or acceptance of the flour by the defendant at Green Bay, so as to take the case out of the statute, in case there had been no contract in writing, is presented. Eo such question is presented, because the delivery of the flour at Menasha pursuant to the terms of the sale is not denied by the answer. By not denying the sale as alleged in the complaint, the defendant admits it to have been in writing; and this, with admission of the delivery at Menasha in pursuance of it, is, under the statute, in all respects equivalent to an acceptance in fact of the flour by the defendant at Green Bay, in case there had been no writing. For this reason, the court was right in overruling the defendant’s objection to the admission of any evidence under the complaint, and in refusing to give the instruction asked upon this point. The instruction was wholly immaterial under the pleadings.

*We*are also of the opinion that the court was right upon another ground, that taken by the judge, viz., that the indebtedness of the defendant for the flour is explicitly admitted by the answer.

As to the stamp, the assignment having been executed before the passage of the act of Congress, approved June 80, 1864, (IT. S. St. at Large, 1863 — 4, ch. 172), the defect was cured by the first proviso of the 163d section of that act, which declares, “ that no instrument, document or paper made or issued prior to the passage of this act, without being duly stamped, or having thereon an adhesive stamp or stamps, to denote the duty imposed thereon, shall, for that cause, if the stamp or stamps required shall be subsequently affixed, be deemed invalid and of no effect.”

*148Besides, we think, without this provision, that it was competent for the plaintiff, upon discovering that the assignment was not stamped, to return it to the assignors for that reason; and that then, upon its being stamped and redelivered, it took effect as a valid instrument from the time of such redelivery.

The only remaining question is as to the plaintiff s interest in the cause of action proved, and Ms right to sue in his own name alone. The statute is imperative, that every action must be prosecuted in the name of the real party in interest except as therein otherwise provided. R. S., ch. 122, sec. 12. The only exception claimed to be applicable here, is that found in section 14, that a trustee of an express trust may sue without joining with him the person for whose benefit the action is prosecuted. The proof is, that the plaintiff is not sole owner of the demand sued upon. It belongs to the firm of Robbins & Lewis, composed of the plaintiff, Ms brother, and one Lewis. The plaintiff and his brother have one half interest, and Lewis the other. The demand was transferred to the plaintiff alone by words of absolute assignment, no trust bemg expressed; but, as the plaintiff testifies, he holds it nevertheless in trust for the firm. It was received on account of a debt due the firm from Peet & Williams, the assignors. Upon these facts it seems to me the plaintiff cannot maintain the action. He is not the real party in interest, nor the trustee of an express trust, within the meaning of the statute. His brother and Lewis should have been joined as co-plaintiffs. He is not the trustee of an express trust, because no such trust appears from the assignment, and none is shown to exist between himself and his co-partners by virtue of any other instrument. In order to constitute a trustee of an express trust, as I understand the statute, there must be some express agreement to that effect, or something which in law is equivalent to such an agreement. The case of factors and mercantile agents may or may not constitute an exception, under the custom and usage of merchants. *Grinnell v. Schmidt,*2 Sandf (S. C.), 706. But in every other case, the trust must, *149I think, be expressed, by some agreement of tbe parties, not necessarily, perhaps, in writing, but either written or verbal according to the nature of the transaction. In this case no agreement is shown that the plaintiff was to take or hold as trustee, and that he is a trustee results merely from other circumstances It is implied from the facts of partnership and that the plaintiff received the assignment on account of a debt due the firm. If it is not purely a case of implied trust, as distinguished from an express trust, then I am at a loss to conceive of one; and to hold the plaintiff to be a trustee of an express trust, would, in my judgment, be a palpable disregard of the statute and violation of the intention of the legislature. I think, therefore, that the court should have granted the defendant’s motion for a nonsuit, and have given the instruction asked upon *this*point, unless the objection was waived by the omission of the defendant to take it by answer. That it was so waived is very clear, and the only difficulty I have had about the question has arisen from the manner in which the evidence was or might have been given. If the evidence of the interest of the co-partners of the plaintiff was, or could be assumed to have been, given without objection on the part of the plaintiff, then I seriously question whether the defendant ought not to have the same benefit from it as if the objection of a want of proper parties had been taken by answer. *Lewando v.*Dunham, 1 Hilt., 114, seems to be a decision to this effect; and I question whether it would not be so in analogy to the rule held in New York, that where the complaint does not state facts sufficient to constitute a cause of action, and the defendant neither demurs nor takes objection at the trial, he cannot afterwards do so on appeal. *Mosselman v. Caen,*34 Barb., 66; *S. C.,*21 How Pr. R., 248; *Pope v. Dinsmore,*8 Abb. R., 429; *Carley*v. Wilkins, 6 Barb., 557; *Hunt v. Bloom*er, 13 N. Y., 341; *Johnson v.*Whitlock, id., 345; *Bowdoin v.*Colman, 6 Duer, 186. If the evidence of the plaintiff’s want of interest had been received without objection, and no motion *150to expunge bad been made or instruction asked by bim, and tbe defendant bad prevailed, and tbe plaintiff appealed on tbe ground tbat tbe defense was not set up in tbe answer, it would seem tbat lie would bave been concluded by bis silence at tbe trial, and tbat tbe objection could not bave been taken for tbe first time in this court. But sucli is not tbe case bere. The-defendant, notwithstanding tbe admission of tbe evidence, was unsuccessful. His motion for a nonsuit was denied, tbe instruction refused, and be appeals for tbat reason. Tbe question tben is, whether it can be assmned tbat tbe evidence was received without objection on tbe part of tbe plaintiff. I think it cannot. On tbe contrary, I think tbe presumption is tbat it was objected to. As already observed, tbe evidence was clearly inadmissible under tbe answer. Tbe defect of parties plaintiff, not appearing by tbe complaint, must bave been taken by answer; and not having been so taken, tbe objection was waived. R S., cb. 125, secs. 5, 8, 9; *Cord v.*Hirsch, 17 Wis., 403; *Gundry v. Vivian,*id., 436; 2 Whit. Pr., § 171, and cases cited. Such waiver is absolute, subject only to tbe power of tbe court to order other parties t® be brought in when necessary to a complete determination of tbe controversy, and to tbe right of tbe defendant to object at tbe trial in cases where tbe defect or misjoinder is not formal in its nature, but goes directly to tbe merits, as affecting tbe rights of tbe plaintiff to maintain tbe action. Whit. Pr., *ibidem.*Here there is no necessity for bringing in other parties. Tbe legal title is vested in tbe plaintiff, and a recovery and satisfaction by bim will discharge tbe defendant from all further liability. Tbe defect is merely formal, and does not go to tbe merits. Tbe cause of action proved corresponds entirely with tbat alleged in tbe complaint. Tbe defendant could not, therefore, object on tbe ground of variance or defect of jiroof. Hence tbe defect of parties was absolutely waived, and tbe evidence wholly inadmissible under tbe pleadings, and being so, I think tbe presumption is tbat it was objected to. Or if this *151is not so, tben I am confident tbat tbe contrary presumption cannot be entertained, tbat tbe plaintiff did not object, wbicb is necessary before tbe defendant can have tbe benefit of tbe facts proved, tbe same as if be bad stated tbem in bis answer. Tbe bill of exceptions is tbe defendant’s, not tbe plaintiff’s, and if tbe plaintiff bad objected bis objections could not appear. *Knox v. Cleveland,*18 Wis., 245. But if it can be assumed tbat be did not object at tbe time tbe testimony was offered, it seems to me tbat it cannot upon tbe motion for nonsuit, and when tbe instruction was asked. Tbe defendant moved for a nonsuit upon tbis distinct ground, among others, wbicb motion was successfully resisted by tbe plaintiff. May it not fairly be presumed tbat tbe court denied tbe motion for tbe reason tbat tbe evidence bad been improperly admitted, and should be disregarded ? And may not tbe instruction have been refused for tbe same reason urged by tbe plaintiff or adopted by tbe court ? It appears to me to be a fair presumption in either case. In *Durgan v. Ireland,*14 N. Y., 822, it was held not to be error in tbe judge in bis final ruling, wbicb determined tbe verdict, to disregard evidence wbicb bad been improperly received, without any subsequent order to expunge it. See also *Jackson v. Whedon,*1 E. D. Smith, 141.

Eor these reasons I think tbe judgment of tbe circuit court must be affirmed.

DowNER, J.

Tbe majority of tbe court are of tbe opinion tbat tbe only way tbe defect of parties plaintiff could have been taken advantage of was by demurrer or answer; and if not taken in tbat way tbe defect was waived. And it is immaterial whether tbe proof of tbe interest of other parties was objected to by tbe plaintiff at tbe time it was received or not. Our statute respecting appeals differs in tbis respect from tbat of New York. We agree with tbe Chief Justice in affirming tbe judgment, but not in all bis reasoning. We express no' opinion as to whether tbe plaintiff is tbe trustee of an express' *152trust within, the statute, or is the real party in interest, so as to sue in Ms own name.

*By the Gowrt.*— The judgment is affirmed.