The herald., 1897-09-22
ON TECHNICAL POINTS
An Opinion in Which the Mt. Wilson
Affairs Figure


An opinion. was handed down. yester-
day by Judge York in the important and
complicated suit of w .Rigby. jr., against
T. s. c. Lowe. Albeit the matter is ratf'-
er technical it Is no. without general in
terest, for the reason that assignments
to third parties for the purpose of main
tanning action are becoming ordinary
occurrences.
I'm this action" says Judge York. II
hold that the assignment of the
chose in action purporting to
be made by the General Elec-
trio company and purporting to be
signed by said General Electric COM
pany by Thomas Addison, such assign
ment being for the purpose of enabling
plaintiff to maintain this action there
on, for and in behalf of said General
Electric company, was void, in that
such assignment was not in the ordin-
ary course of business of said company,
ard the said Addison had no special au-
thority to make said assignment.
I'm his testimony, upon which 1t IS
contended the authority for the assign
ment is shown, Addison. testifies that he
holds the position of local or district
manager for said company for what is
known as the coast district, and has held
it continuously since the organization
OF the company in May or June, 1888.
He says that he put the claim in ques-
ton into the hands of Pickins. Fulton e.
Company for collection, and assigned 1t
to w. Rigby, jr., the plaintiff in this ac-
ton. The assignment is endorsed Gen
eral Electric company, Thomas Addi-
son, district manager He further says
that probably half or two-thirds of the
bills of the company are paid direct at
his office; that the remainder are sent
to the general office in Schenectady. He
says, further, that his company has
adopted the plan of making all oollec-
tions at Schenectady for business done
through the districts, and that plan is
followed very closely for all the offices
except the Pacific coast office. The plan
is varied very much here for the reason
that it is so far away. But the large
proportion Of the collections are made
in his office.
This does not show any regular course
of business on the part of the General
Electric company of transferring the
title to its chooses in action to strangers
10 enable them to main tain actions for
the collection of the same. The author
tiles cited by plaintiffs counsel sustain
him in the proposition that general
agent can endorse negotiable paper to
bank to enable the bank to receive pay
ment of the same. That is the usual and
ordinary course of business. 1t is true
that a practice is somewhat in vogue or
making assignments of chooses in action
to third parties to enable those third par
ties to maintain actions instead OF pros
ecuting the action in the names of the
real owners. But that practice has not
become a general one; neither is 1t usual
or ordinary. And owing to the danger
10 which such practice would subject
debtors who might. by reason of such
practice, be required to pay claim
twice, it is to be hoped that the practice
will not become general one. judg-
ment in such an action is not IN estoppel
10 an action, by the alleged assignor on
the same claim, except on proof de novo
Of the assignment, and in such Subse-
quent action the burden is on defendant
to prove the assignment. So dangerous
a practice should not be extended be-
yond its present questionable status
Inasmuch as the assignment of the claim
due to the General Electric company to
the plaintiff is not valid he cannot main
tain this action as to that claim.
"As to the second cause of action, the
assignment of the claim to plaintiff is
shown to be valid, but in the second
cause of action there is no allegation
except by inference, that the bill of ex-
change, so called, has not been paid. All
the allegations of non-payment that I
find are that the defendant has failed
neglected and refused to pay the same.
Notwithstanding this allegation the debt
may have been paid by the drawers of
the bill of exchange or by some other
person. On the authority of O'Hanlon
VS.. Denvir, 81 Cal62, shall hold that the
complaint is good against a general de-
murrer or motion for non-suit These
are the only questions upon which any
doubt should exist.
After plaintiff had introduced his
evidence and rested, defendant moved a
non-suit and stated that, should the nom
suit be denied, he would submit the case
on plaintiffs evidence. Motion for non
suit is therefore denied and judgment
ordered to be entered for plaintiff for
the amount claimed in his second cause
of action and that plaintiff take nothing
on his first cause of action"
WITHDREW HIS PLEA