The record-union. [volume] (Sacramento, Calif.) 1891-1903, 1899-06-24
DEMURRER SUSTAINED.
Judge Johnson's Decision in the
Hawk-Barton Case.

In the case Of E. L. Hawk against O.
L. Barton, Judge Johnson yesterday
sustained the demurrer to the COM
plaint, which. had the effect Of dis
missing the suit The decision, which
is of considerable importance, Is given
in full as follows:
On the Sd day Of May, 1890, one
Matthew Lennox obtained a Judgment
in the Superior, Court of Ell Dorado
County against one w. p Harlow. On
the 10th day of May, 1893. Harlow
made an agreement based upon valu-
able consideration with the defendant
Barton whereby defendant agreed to
satisfy said judgment, which is for the
sum of $62S.66 On to 18th day OF
December, Harlow assigned the agree
ment just named to plaintiff Hawk
and on the 7th day of July, 1896, Len
nox assigned his judgment to Hawk.
Hawk now commences a suit against
Barton for the amount, principal and
interest, due upon the judgment De-
PENDANT demurs to the complaint.
It will be observed that the amend
ment to Section 6S1, C. c. P. became
in effect on the 9th of March, 1895, jus,
a few weeks before the judgment would
have been void by reason of statutory
limitation but for the amendment.
The first question that confronts us
is, what effect did the assignment of
Harlow to Hawk Of the agreement he
made with Barton have upon the par
ties? 1t seems clear to me at this time
plaintiff received but an empty sack.
There was no way by which he could
a fod hxy 1o &c.,, T4
Barton complied with the terms Of the
contract and paid the judgment, the
proceeds went to Lennox and not to
him. He could not have enforced it by
a suit, because Lennox, and not he,
was the party in interest.
Next let US see if Lennox could have
enforced the agreement between Har-
low and Barton. do not see how he
could Barton did not make an agree,
ment with Lennox to pay he made the
agreement with Harlow. This does not,
In any sense, partake of a novation of
contract, because there was no at
tempt to institute a new obligation for
one that is existing. BSrton was not
substituted for Harlow as a judgment
debtor. Lennox was not party To
the contract. tSecs. 1880 and 1881, c.
Co. @
Will the situation be changed by the
assignment of Lennox's judgment to
Hawk? Can the holding Of two mega
tive powers by Hawk give him an af-
firnative right to maintain an action
The rule that two negatives are equiv
alent to an affirmative may be good in
grammar, lAlt will not avail in law. If
from the 18th of December, 1895, until
the 7th Of July, 1896, Hawk could not
have maintained suit, and IL, from
the 18th day OF May, 1898. to July Z,
1896, Lennox could not have madf1-
tanned an action against Barton for the
amount due upon the judgment, I can
not see how on that day that, by a
union of their interests in one Of the
parties an action could be maintained.
l can see no other construction to be
given the contract between Barton and
Harlow except that 1t is a contract OF
indemnity. If SO, an action could not
be maintained thereon until payment
has been made. 1t is not claimed that
Harlow has paid the judgment. (Secs.
2,777 and 2,77S, C. CO.
The demurrer Of the defendant will
r.