Milford Co v. Short

delivering the opinion of the court:

[1, 2] Both on the pleadings and from the evidence, this is an action for the breach of a contract for the purchase of lumber on the part of Emil P. Gebhart and the sale and delivery thereof to Gebhart, on the part of Isaac D. Short, the defendant, for the erection of a certain building. The contract was subsequently assigned by Gebhart to the Milford Company, the plaintiff, with notice to Short. There is no proper suggestion in the declaration of a novation of the contract. The averment in the declaration is:

“ * * * On the eighteenth day of July, A. D. 1912, the said Emil P. Gebhart by certain writing signed by him, bearing date the day, month and *564year last aforesaid, for valuable consideration, assigned, transferred, bargained and sold to the plaintiff all his right, title and interest under the said contract, whereof the said defendant on the same day, month and year aforesaid had notice.”

It is not shown that the defendant agreed to the assignment, or that there was any new promise on his part to the plaintiff based on any consideration therefor from the plaintiff to the defendant, or that the liability of the latter to Gebhart was extinguished. McKinney v. Alvis. 14 Ill. 33; Cole v. Bodfish, 17 Me. 310. It is scarcely necessary to say that proof of any other contract than that declared on constitutes a fatal variance.

[3] The contract sued on being a chose in action, was not assignable so as to entitle the plaintiff, the assignee, to maintain an action thereon in its own name for a breach thereof; for in such a case the ¡assignee must sue in the name of the assignor. 1 Sound. Pl. & Ev. 144; Dicey on Parties to Actions, rules 6, 15, pages 80, 136; 1 Chitty, Pl. 15; Elliott on Contr. § 1431; 5 C. J. 986; Kinniken v. Dulaney, Assignee, 5 Harr. 384; 1 Woolley, Del. Prac. §§ 145-147.

For the reasons stated, we are constrained to grant the nonsuit.

Mr. Gray: We decline to take a nonsuit.

Boyce, J., charging the jury:

The court instruct you, gentlemen of the jury, to return a verdict for the defendant.

Verdict for defendant.