[No. 703.]

#### J. W. PECK, Respondent, *v.*ELLIOTT DODDS et al., Appellants.

Assignob of Account cannot Sue — When.—The assignees of an account cannot authorize the assignor to bring suit in his own name, while they retain the absolute property in the account.

Idem — Liabilitx of Debtoe. — A debtor is not liable to the assignor and assignee of an account at the same time, aud where the assignees have an undoubted right to sue, the assignor cannot maintain an action commenced in his own name.

Appeal from the District Court of the Seventh Judicial District, Lincoln County.

The testimony offered by plaintiff to show a reassignment, by parol, of the account sued on, was as'follows: J. W. Peck, plaintiff, testified “that lie had a conversation, in June, 1874, with W. W. Bishop, attorney for the assignees of the account sued on; that Bishop asked him what he was going to do with the account; that about August 1st Bishop said to him: ‘Well, you.have done nothing about that collection yet.’ I told him T had not. He turned around tome and said: ‘Go and collect this in your own name; attach the cattle, if you can do no other way.’ Witness had a conversation subsequent to this ‘with Mr. Glissan, one of the assignees of the account, in which Glissan said to witness: ‘You go and collect it in your own name. I understand they are moving their cattle to the railroad.’ I told him I would. I then commenced this suit.” Upon cross-examination, this witness said : “Bishop and Glissan never reassigned the account to me, nor have they verbally agreed to do so, except in the conversations spoken of. Bishop said I could not collect it except for the benefit of Glissan and Bishop. I never asked Glissan to reassign it to me.”

J. G. Foster testified that he heard a conversation between J. W. Peck and W. 0. Glissan; that Peck insisted upon Mr. Glissan collecting the Dodds account; that Glissan told Peck to collect it himself in anyway he could; *205that there was some disagreement between them as to what could be clone.

W. W. Bishop, being sworn, said : “I had a conversation with plaintiff about the collection of this Dodds account, and I was asked what I wanted done with it. I said I wanted it collected. Glissan and Peck came to me to determine what was to be done with this account. I said I would not sue upon it, nor have anything to do with it until after Peck had made an effort to collect it, as he had stated at the time of the assignment that he could and would collect it if he had the authority to do so. I then said, ‘Do anything you have a mind to; collect it, if you can.’ Peck then asked if I would give him a written assignment for it. I said, ‘No; because the moment I give that assignment, any creditor who has not been mentioned in the assignment can attach the money for Peck’s debts, and that would destroy the force of this assignment.’ Major Peck said: ‘The Dodds owe this money. I think I can collect it, and am willing to do all I can to help you get this money and everything else mentioned in the assignment, but I cannot act with my hands tied.’ I said to him that I did not wish to tie his hands, nor to prevent his acting. I am willing to give you all the authority in this world to get this money and carry out your part of the agreement. All I ask is, that wheh the money is collected, that it shall be disposed of to pay your debts mentioned in the assignment. ” Deferring to another conversation, this witness said: “I met Major Peck on the street, and he said, ‘I want to sue the Dodds; they owe me that money, and I can make them pay it.’ I then said, ‘ Sue them, and let the matter be settled one way or the other — the quicker the better.’ He said, ‘Do you authorize me to sue?’ and I replied, ‘Do what you please, I will have nothing to do with it. I don’t want to be bound for any costs, nor be bothered with the matter. I have had all the trouble with this I am going to have.’ He then said, ‘Will you authorize me to sue?’and I said, ‘ Yes, as far as I can without releasing the money, for when it is collected it must be applied according to the terms of the assignment.’”

*206Upon cross-examination, this witness said: “lam tbe attorney in fact and at law for A. C. Bishop. * * * I claim, as such attorney, that all money now due from tbe Dodds should be paid to Glissan and Bishop. I have never released it, except conditionally. * * * I released the privilege of the firm of a lawsuit. I positively refused to reassign, except that I said I would not do so except as above stated. I never agreed that I would reassign it to him so as that he should own the money. I wanted that Glis-san and Bishop should have the money named in the assignment. I always reserved the proviso that Glissan and Bishop should have all that money. I claim that instrument, as such, is in full force, and that if I came across any of that property or money mentioned, I would want it as their attorney.”

*Piker & Corson,*for Appellants.

*A. B. Hunt,*for Bespondent.

I. Every suit shall be prosecuted in the name of the real parties in interest, except as otherwise provided in the practice act. This case does not come under the exception. (Compiled Laws, Sec. 1067.)

II. A parol agreement to rescind a written contract is good, and such an agreement may be presumed from the acts of the parties. The law regards the substantial rights of the parties and will protect them. *{Greeny! Wells & Go.,*

2 Cal. 585; *Dubois*v. *Delaware and Hudson Canal Co.,*12 Wend. 834; *Smith*v. *Gugerty,*4 Barb. 614.)

III. Parol evidence is admissible to prove a waiver of a written agreement entered into by the parties. *{Langworthy et al.*v. *Smith et al.,*2 Wend. 588; *Fleming*v. *Gilbert,*8 Johns. 529; *Honroey. Perkins,*9 Pick. 301; *Lockwood*v. *Can-field,*20 Cal. 127; *Carlyon y. Lamían,*4 Nev. 156; *Bingham et al.*v. *Thompson,*4 Nev. 224.)

IY. Plaintiff was the proper party to bring this suit. He was the only and real party in interest. The assignees were to pay the debts out of the assets of plaintiff’s property. No , *207one of tbe creditors of plaintiff ever at any time were parties to or were bound by tbe assignment. It was only an arrangement between plaintiff and tbe assignees, and tbe funds to pay Peck’s debts witb must come out of tbe property assigned. Tbe assignees did not covenant to pay out of their own funds. Hence tbe plaintiff was tbe real party in interest to see that tbe Dodds account was collected, and in this light plaintiff and tbe assignees regarded tbe Dodds account. *(Wiggin*v. McDonald, 18 Oal. 126.)

Y. Glissan and Bishop are forever debarred from bringing suit on tbe Dodds account, and it was not even urged that they could ever do so. *(Mitchell*v. *Deed,*9 Cal. 204; *Plumb*v. *Cattaraugus Co. Ins. Co.,*18 N. Y. 394; *Dezellv. Odell,*3 Hill, 215; *Welland Canal Co.*v. *Hathaway,*8 Wend. 482.)

By tbe Court,

Beatty, J.:

Tbe defendants in this case set up in their answer and on tbe trial proved that tbe account sued on bad been assigned by tbe plaintiff to Bishop and Glissan before tbe commencement of tbe action, and themselves notified. The assignment referred to is in writing, and recites that it is made in consideration of tbe assumption by tbe assignees of certain debts of tbe assignor. It provides that tbe assignees are to take possession and dispose of tbe property enumerated, collect the accounts, and after paying themselves tbe amount of tbe debts assumed and their necessary expenses in managing tbe business, to return any overplus to tbe plaintiff. In tbe meantime tbe sale and assignment are to be absolute. There can be no doubt that so long as this assignment remained in force tbe right to sue on all accounts embraced by it was vested in tbe assignees exclusively as tbe real parties in interest. Tbe plaintiff, not denying tbe assignment nor disputing its legal operation while in force, offered to prove in rebuttal a reassignment to him of tbe particular account upon which this action was brought. Tbe testimony offered for that purpose was objected to by defendants and was admitted subject to their right to move to strike it *208out, which they did upon the ground that it did not prove, or tend to prove, a retransfer of the account. The motion was overruled, the testimony submitted to the jury, and a verdict rendered against the defendants, up'on which plaintiff had judgment.

Defendants appeal from the judgment, assigning error of the court in refusing to allow their motion to strike out as one of the grounds of appeal.

We think the ruling of the court was erroneous. Giving the utmost possible effect to all the testimony offered by the plaintiff on this point, and conceding the validity of a reassignment by parol, there is nothing to show such reassignment or any intention of the assignees to make one. *It is*true, they told plaintiff to collect the, account in his own name, and to sue on it and to attach; but they coupled these directions with an express refusal to reassign. They seem to have thought that they could give plaintiff authority to sue, while they retained the absolute property in the account, and with it, of course, the right to sue in their own names. But, clearly, the defendants could not be liable to assignor and assignees at the same time, and as Bishop and Glissan had an undoubted right to sue when this action was commenced, the plaintiff must necessarily fail.

Judgment reversed.