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159 Ala. 410

Bohanan v. Thomas

Supreme Court of Alabama

Decided April 6, 1909

Supreme Court of Alabama · decided 1909-04-06

Heard before Hon. W. W. Haralson. Assumsit by James R. Thomas against D. P. Bohanan. For a judgment for plaintiff, defendant appeals. The action was for breach of the following contract: “September 22, 1902. This agreement, between D. P. Bohanan, of the first part, and J. R. Thomas, of the second part, witnesseth: That the said D. P. Bohanan has sold to said Thomas 80 acres of land (here follows the description) for the sum of $648, to be paid in notes.

Relies on Johnson v. Martin · Wolffe v. Eberlein · Snead v. Bell

Good law ✅— No negative treatment on recordhow we know

Reversed and remanded · Decided 1909-04-06

How this case has been cited

Cited by 7 later decisions — most recently February 1948

7 state decisions

4019091910192019301940decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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ANDERSON, J.

¶1We are of opinion that the contract, as set out in the complaint, placed the duty upon the defendant of furnishing the material for the house, and that the demurrer to the fifth plea was properl] sustained, as it did not answer the complaint.

¶2The contract, set out in the complaint, was not. such a one as required the suit brought in the name of the real owner under the terms of section 28 of the Code of 1896 (section 2489 of the Code of 1907). Nor did pleas 7 and 8 bring the suit within the provision of section 876 of the Code of 1896. Conceding, without deciding, that the contract was such an instrument that an assignment thereof, by indorsement, would authorize the bringing of a suit thereon by the assignee, the pleas do not aver that it was assigned by indorsement, as is required by the statute. — Snead v. Bell, 142 Ala. 449, 38 South. 259.

¶3While the contract set out is not such a one as authorizes suit, under the statute, in the name of the beneficial owner, and the pleas do not bring it. within the influence of section 876 of the Code of 1896, yet pleas 7 and 8 do aver that Hood became the real owner before the commencement of the suit. This being true, the suit should be in the name of the present plaintiff, but for* the use or benefit of Hood. The assignment, if made for a valuable consideration, passed the equitable title to Hood, *414vesting in him the exclusive right to the use of the name of the assignor in suing upon the contract. If the contract was assigned, the suit should he in the name of the present plaintiff for the use or benefit of Hood. — Johnson v. Martin, 54 Ala. 271, and cases there cited.

¶4In the case of Wolffe v. Eberlin, 74 Ala. 99, 49 Am. Rep. 809, a demurrer to a plea almost similar to pleas 7 and 8 in the case at bar was sustained; but a careful consideration of this case discloses that the plea did not aver that the assignment was made before the suit was brought, and the opinion stresses this fact.

¶5Pleas 7 and 8 were not subject to the grounds of demurrer assigned thereto, and the judgment of the circuit court is reversed, and the cause is remanded.

¶6Reversed and remanded.

Dowdell, C. J., and McClellan, Mayfield, and Sayre, JJ., concur.
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