¶1 (dissenting) When Christ Vilhauer and Robert Wildennuth appointed P. A. Lucey as their agent or trastee or representative for the liquidation of the Wlildermuth Hardware Company, they knew that he already represented, and would continue to represent, their creditors. Whatever Lucey may have been, whether agent, trustee, or what not, he was acting for and in behalf of all concerned with the knowledge and consent of all. Lucey did not represent exclusively either the debtors or the creditors, and his only obligation was to deal fairly with all of them and there is neither claim nor contention that he has not so done. Appellant raises no question as to the validity or amount of the claim of any of plaintiff’s assignors. The only real controversy 'between the parties of this litigation is whether or not the writing of October 9, 1930, is binding upon Christ Vilhauer according to its temas. All parties interested in having that controversy determined were before the court (the several creditors by virtue of their assignments to Lucey), and the controversy was fully submitted to the court and a decision rendered upon the merits. I think that decision was entirely correct.
¶2 If I understood the majority opinion correctly, it turns a reversal solely upon the single proposition that Lucey is barred by public policy from representing the interests of creditors as party plaintiff in this case whether as assignee or otherwise. The only practical result of this decision will be that the creditors will assign their claims to some one else and! the same parties will again present the same controversy on the merits to the same court, the only change being that there will be a different nominal plaintiff. 'Conceding that it would have been better if the 'creditors had selected some one other than Lucey as assignee to represent them as plain *62 tiff, yet no one has been harmed or prejudiced thereby, and it seems to me futile, expensive, and time wasting to require this case to be started and tried all over again. I believe therefore that the judgment appealed from ought to be reviewed by this court upon the merits and affirmed.