An assignee is then, under this rule, the real party in interest, and may maintain a suit in his own name. His right in this respect is not dependent in the least on the inability of his assignor to maintain an action upon the claim assigned. Thus an assignee of a written instrument for the payment of money to a partnership by its firm name, though fictitious, may sue thereon in his own name regardless of the right of the partnership to sue.10 If the assignment of a claim is merely for security, it nevertheless passes title to the assignee; and the defense that the assignor was the real party in interest cannot be maintained; and if the legal title to anything in action is vested in the assignee, the right to sue cannot be affected in any way by collateral agreements between him and his assignor as to disposition of the proceeds;12 accordingly an assignment for collection vests the legal title in the assignee regardless of the fact that the assignee paid no consideration for the assignment, and the assignee may sue thereon in his own name.13 So, also, the fact that the assignee of a claim merely gave his due bills therefor does not deprive him of his right to sue.14 14 § 14. Promises for the benefit of third persons. The codes provide that an executor or administrator, or trustee of an express trust, or a person expressly authorized by statute, may sue without joining with him the persons for whose benefit the action is prosecuted. And it is expressly provided that a person with whom, or in whose name a contract is made for the benefit of another is a trustee of an express trust within the meaning of the rule so stated. It is to be noted that the language used by the several legislatures in this connection is permissive, while that employed in laying down the rule with reference to the bringing of suits in the name of the real party in interest is imperative. Commenting on this circumstance, writers on code pleading maintain that suits may be brought by the real party in interest. notwithstanding the exception, which they argue merely permits suits to be instituted by the representative or trustee with 10 Quan Wye v. Chin Lin Hee, 123 Cal. 185, 55 Pac. 783. 11 Estate of Cummins, 143 Cal. 525, 77 Pac. 479. 12 Grant v. Heverin, 77 Cal. 263, 18 Pac. 647; 19 Pac. 493. 13 Greig v. Riordan, 99 Cal. 316, 33 Pac. 913; Tuller v. Arnold, 98 Cal. 522, 33 Pac. 445. 14 Glendale Fruit Co. v. Hirst, 6 Ariz. 428, 59 Pac. 103. out joining the party beneficially interested-the real party in interest.15 This contention is supported by the prevailing rule that one for whose benefit a promise is made may sue alone on the promise as the real party in interest.16 In Wiggins v. McDonald (18 Cal. 126), where the defendant was indebted to the Empire Mining Company, which was indebted to the plaintiff, and it was agreed by all parties that the defendant should pay to the plaintiff the amount of this indebtedness, the supreme court of California said: "If the rights of the plaintiff were to be determined by the rules of the common law it might be a question whether the action could be entertained in its present form; but there is no doubt that the transaction amounted to an equitable assignment of the debt. . . . We have but one form of action for the enforcement of private rights, and, with certain exceptions, the statute requires that every action shall be prosecuted in the name of the real party in interest. Cases of assignment are not included in these exceptions, and in the form of remedy no distinction exists between legal and equitable rights." In those jurisdictions where this rule maintains it is uniformly held that where a contract, either oral or written, and not under seal, is entered into by two persons for the sole benefit of a third, the latter may sue thereon in his own name, although the contract may not be directly to or with him and the consideration therefor did not move to or from him. It has been held in a California case that if a contract be for the benefit of a third person, even though he be not cognizant of it when it is made, if adopted by him is deemed to have been made to him, and he may sue thereon, though the whole consideration moved from the promisee to the original promisor; and it is no objection to the action that the original promisee might also sue on the promise. In some jurisdictions it is held that if a contract is under seal it cannot be sued upon by the person for whose benefit it is made if he is not a party 15 Pomeroy's Remedies, § 138; Bates on Code Pl., § 5. 16 Wiggins v. McDonald, 18 Cal. 126; Malone v. Crescent City etc. Transp. Co., 77 Cal. 38, 18 Pac. 858; Curry v. Gila Co., 6 Ariz. 48, 53 Pac. 4; Miliani v. Tognini, 19 Nev. 135, 7 to the deed, but the suit must be brought in the name of the person with whom the contract is made.18 New York was the first state to adopt the rule that a third party may maintain an action upon a promise made for his benefit, and it is from New York that most of the states derive their authorities sustaining the doctrine.19 In Colorado, the person for whose benefit a contract has been entered into may not only sue upon it himself, but may plead it by way of setoff.20 § 15. Principal and agent.-Agency has been frequently recognized as the basis of the rule considered under the last head.21 Whether there is any force in this contention or not, it is a universal rule that if a contract be made by one of the parties as the agent of another person, the latter may treat it as his own contract, and may sue thereon in his own name, and prove by parol evidence that he is entitled to do so, although there is nothing on the face of the writing to connect him with it.22 Of course, where a contract affirms that a party is contracting on his own behalf as principal, or excludes in terms the idea of his acting as agent, no other person can be substituted as principal for the purpose of a suit on the contract. Where the fact of the agency is known and the contract is made in the agent's name he may sue thereon without joining his principal.23 In those cases where actions may be maintained by undisclosed principals, a right of action appears, in the first instance, to exist in favor either of the principal or of the agent in whose name the contract was made, and where an 18 Hendrick v. Lindsay, 93 U. S. 143, 23 L. Ed. 855; Willard v. Wood, 135 U. S. 313, 10 Sup. Ct. 83, 34 L. Ed. 210; Moore v. Hense, 64 Ill. 162. 19 Schermerhorn v. Vanderheyden, 1 Johns. 139, 3 Am. Dec. 304; Lawrence v. Fox, 20 N. Y. 268; Buchanan v. Tilden, 158 N. Y. 109, 70 Am. St. Rep. 454, 52 N. E. 724, 44 L. R. A. 170; Lisenby v. Newton, 120 Cal. 571, 65 Am. St. Rep. 203, 52 Pac. 813; Bishop v. Stewart, 13 Nev. 25; Miliani v. Tognini, 19 Nev. 133, 7 Pac. 279; Brower Lumber Co. v. Miller, 28 Or. 565, 52 Am. St. Rep. 807, 43 Pac. 659; Montgomery v. 21 In Gifford v. Corrigan, 117 N. Y. 257, 15 Am. St. Rep. 508, 22 N. E. 756, 6 L. R. A. 610, Judge Finch declared that the idea of agency in such cases was a legal fiction, having no warrant in the facts. 22 Ruiz v. Norton, 4 Cal. 355, 60 Am. Dec. 618; Parker v. Cochrane, 11 Colo. 363, 18 Pac. 209; Nicoll v. Burke, 78 N. Y. 580. 23 Winters v. Rush, 34 Cal. 136; West v. Crawford, 80 Cal. 31, 21 Pac. 1123. 24 agent contracts directly as principal, he may sue in his own. name whether the other party knew of the agency or not. If, however, an undisclosed principal undertakes to treat as his own a contract made with his agent and in the latter's name, he must generally accept the contract subject to the same defenses which might have been asserted in an action brought by the agent prior to the disclosing of the fact of agency.25 Such a holding is necessary to meet the reason for the rule requiring actions to be brought in the name of the real party in interest. 24 Tustin Fruit Assoc. v. Earl Fruit Co. (Cal.), 53 Pac. 693. 25 Ruiz v. Norton, 4 Cal. 355, 60 Am. Dec. 618. This subject is treated at length in a monographic note in 55 Am. St. Rep., pp. 916-923. CHAPTER IV. PARTIES PLAINTIFF-ACTIONS EX CONTRACTU. § 16. Creation of interest.-As pointed out in the last preceding chapter, the plaintiff in an action must have a real interest in the subject-matter of the suit, and a party suing cannot recover if it is shown that he has not such an interest. In actions ex contractu the relation to the contract necessary to enable a person to sue upon it may arise in any one of several ways: 1. By the contract itself, as where the party asserting the right to sue is a party to the original contract; 2. By transfer or assignment of an original party's rights; 3. By operation of law, as in the case of executors or administrators of a deceased party to, or assignee of, a contract, or as in the case of persons constituted by law the personal representatives of parties otherwise proper plaintiffs; 4. By aid of the law, as in the case of attachment or garnishment of debts due or property in possession.1 pointed out by Mr. Estee, attachment is a special proceeding, in most states, in aid of an action pending or for the enforcement of a judgment rendered. To be exact, it should perhaps be called a provisional remedy. "While in some states, as in Michigan, although a suit must first be commenced against the principal defendant before a writ of garnishment can be obtained against one indebted to him, yet the affidavit for the writ and the answer of the garnishee form an issue between them, and the case is docketed and tried as an independent suit, and a judgment is rendered therein for or against the garnishee, as in other actions, but as the garnishee of the principal debtor." 2 As § 17. Persons who may join as plaintiffs.-The codes of the several states which have adopted the code procedure contain a provision similar to the one in the California code, to the effect that "all persons having an interest in the subject of the action and in obtaining the relief demanded may be joined as plaintiff's, 1 Estee's Pl. & Pr., § 133. 2 Id. |