F. H. Grain v. Aldrich, 38 Cal. 514 (Cal.)

Sanderson, J., delivered the opinion of the Court:

The plaintiffs, as agents for the Bank of British North America, sue to recover of the defendants, formerly engaged in business in Honolulu, under the name of Aldrich, Walker *6* Co., the aggregate sum of $132,236 25.

The complaint contains three counts, in each of which the same claim is stated in different modes. The facts, however, are, that the defendants were indebted to the firm of Charles W. Brooks & Co. in the sum of $159,000 and upwards; that Brooks & Co. sold and assigned a part of said indebtedness,

to wit, the sum. of $44,078, to the plaintiffs, of which assignment the defendants had due notice.

To this complaint the defendants demur, upon the ground that it does not state facts sufficient to constitute a cause of action. The Court below sustained the demurrer, and, plaintiffs having declined to amend, final judgment passed for the defendants. Being dissatisfied with this result, the plaintiffs have brought the case here.

In support of the demurrer, it is argued on the part of the defendants that an assignment of a part only of an entire demand is void at laiv, unless made with the consent or ratification of the debtor; that is to say, that no action at law can be maintained upon such an assignment, unless it was made with the express consent of the debtor, or was subsequently duly ratified by him; and that this is an action at law, and there is no allegation that the assignment was made with the knowledge and consent of the debtors, or that they subsequently ratified it.

Leaving out of view the practice which has been adopted in this State, and which has abolished in the matter of procedure and form all distinctions between law and equity, the position taken by the defendants is, doubtless, impregnable. Indeed, the proposition is so well settled that it need only be stated. “At law, the debtor has a right to stand upon his contract,” said Mr. Justice Story, in Mandeville v. Welch, (5 Wheaton, 277.) To allow the creditor to split an entire claim into any number of fragments he may chose, would subject the debtor to conditions to which he never assented, and involve him in embarrassments and responsibilities which he never contemplated. It has always been considered that a plaintiff having an entire demand, cannot divide it into distinct parts and maintain separate actions upon each. If he undertakes such a course, a recovery in one action will bar the others. (Smith v. Jones, 15 John. 229; Willard v. Sperry, 16 Id. 121; Marziou v. Pioche, 8 Cal. 536; Herriter v. Porter, 23 Id. 385.) If he cannot do this himself, by parity of reason, he cannot by an assignment enable others to do it, either in his name, as at common law, or, under the rule in this State, in their own. This question, substantially, was

before us in a recent case, involving the question whether part of an entire demand, so assigned, could be attached in the hands of the debtor, at the hands of a creditor of the assignee. We considered that it could not, for the reason that only the legal demands of the defendant in an attachment could be reached by garnishment; that is to say, only such demands as the defendant in the attachment could have recovered in an action at law, under the practice at common law, and that by the assignment in question, the defendant in that case had acquired, if anything, only a lien in equity upon, the fund, which the plaintiff undertook to reach by his attachment. (Hassie v. G. I. W. U. Congregation, 35 Cal. 378.)

The claim put forward by the plaintiffs, that the assent of the defendants to the assignment is alleged in the complaint, is without any substantial foundation. The allegation is, “of which said assignment the defendants have had due notice.” This is not an allegation that the defendants knew of the assignment at the time it was made, and assented to it, or that they afterward did so. It is merely an allegation of the notice, which an assignee of such a demand as that declared on is required to give, in order to stop payment to his assignor, and thus secure to himself the subject of the assignment.

In view of what has been said, we must agree with counsel for defendants, that had the plaintiffs gone, under the English practice, into a Court of law, upon the facts stated in their complaint, they could not have been allowed to recover. And if they could not have amended their complaint so as to show an express assent to the assignment by the defendants, they would have been finally told they were in the wrong forum. But under the system of practice which prevails in this State, such results do not follow. Legal and equitable relief are administered in the same forum, and according to the same general plan. A party cannot be sent out of Court, merely because his facts do not entitle him to relief at law, or merely because he is not entitled to relief in equity, as the case may be. He can be sent out of Court only when, upon his facts, he' is entitled to no relief, either at law or in equity.

If, then, upon the facts stated in the complaint, the plaintiffs would have been entitled to relief in equity under the old system of practice, the ruling of the Court below was erroneous.

Here, too, we agree with counsel for the defendants, that, under the English practice, a Court of Equity would not grant the plaintiffs relief, as the case now stands; not, however, upon the ground that the facts do not entitle him to it, but because all of the parties interested in the subject-matter are not before the Court. There can be no question but that equity will sustain this assignment, and take an account of the indebtedness between Brooks & Co. and the defendants, and settle and ascertain the respective interests of Brooks & Co. and plaintiffs in the funds, and render judgment accordingly. This is not denied by counsel for the defendants. Indeed, that equity will do this, is quite as well settled as it is that law will not. (Field v. Mayor of New York, 2 Seld. 179 ; Pope v. Huth, 14 Cal. *407; Pierce v. Robinson, 13 Id. 120.) Had the plaintiffs made Brooks & Co. parties, and added a prayer for an account and apportionment of the debt due from the defendants, there could have been no question as to their right to relief. Under our system of practice, then, the real objection in this case is not a want of facts, but a want of parties.* The defendants are entitled, if they so desire, to have all the parties having an interest in the subject-matter before the Court, in order that its judgment shall be a final determination of the whole matter, and leave nothing to be done by piecemeal. But our system makes no distinction between law and equity cases, and if the defendants were unwilling that this case should proceed by piecemeal, or without the presence of Brooks & Co., they should have put their demurrer upon that ground. Having demurred only upon the ground that the facts are insufficient, their demurrer should have been overruled, for the statute expressly provides that if no objection be taken for the want of parties, the objection shall be deemed waived. The defendants were at liberty to waive the objoc

tion, if they saw proper to do so. This they did, by not taking the objection in the appointed mode.

In conclusion, it is proper to say that if, in the course of the subsequent proceedings in this case, the Court should find it impossible to completely determine the controversy between these parties, without the presence of other parties, the Court may order them to be brought in, notwithstanding the failure of the defendants to insist by demurrer upon their presence. (Practice Act, Sec. 17.)

Judgment reversed, and cause remanded.