CHIPMAN, C.

Action for the value of certain nursery trees sold and delivered to plaintiff's assignors. Defendants answered by general denial and also set up specially, by separate answer, certain facts alleging the failure of plaintiff's assignors to comply with the terms of the contract under which the trees were delivered. The pleadings were not verified. The trial was by a jury and plaintiff had the verdict. Defendants appeal from the judgment and from the order denying their motion for a new trial.

It is claimed by appellant that there was no evidence introduced to prove an assignment or transfer to plaintiff of the claims sued on.

The complaint sets forth certain claims in two counts, one of which alleges the sale to defendants of certain fruit trees by one H.H. Linville and an assignment to plaintiff of the claim, and the other count alleges a sale by one W.J. Linville to defendants and an assignment to plaintiff. The assignment in each instance and the denial thereof raised a material issue which it was incumbent on plaintiff to establish by proof. (Read v. Buffum, 79 Cal. 77; 12 Am. St. Rep. 131; Ford v. Bushard, 116 Cal. 273.) Respondent contends that "the assignment is not the cause of action, but only the right of plaintiff to sue," and, quoting from California Steam Nav. Co. v. Wright, 8 Cal. 585, claims that "the want of legal capacity to sue is a personal disability, and, if the defendant intends to set up such a defense, he should state so distinctly. The general denial relates to some other facts alleged concerning the contract. The general issue is not sufficient." (Citing, also, White v. Moses, 11 Cal. 70; Bank of Shasta v. Boyd, 99 Cal. 604, and some other cases.)

Respondent fails to distinguish between the question of capacity and the question of right to sue. The capacity is one thing, while the right is quite another. The capacity may be admitted, but the right must rest upon proof of assignment and must be established whatever may be the capacity in which the assignee sues.

Respondent calls attention to the testimony which he claims sufficiently proved the assignment. It appears that when Curtis, one of defendants, was testifying as a witness in relation to certain correspondence he had with one of the Linvilles as to the unsatisfactory condition of the trees and to arrange a meeting, and after stating that the meeting was put off he said: "After that, the next letter I got from Linville, he stated that he assigned his claim to Brown." It was admitted that plaintiff made demand upon the defendants prior to the commencement of the action. In defendants special defense the answer begins as follows: "1. That during the years 1893 and 1894 H.H. Linville, the assignor of plaintiff, was a nurseryman," etc. This is all that is pointed out by respondent from which the jury found that the claims of both the Linvilles were assigned to plaintiff. If we could regard the admission that one of the Linvilles wrote to Curtis that he had assigned his claim to Brown, as evidence of the fact, it would still leave no admission as to the other claim. But we cannot regard it as evidence of the fact at all. There is nothing to show that defendants, or either of them, at any time dealt with or recognized Brown as assignee. Nor was a mere admission that Brown demanded payment before suit brought any evidence of Brown's ownership of the claims or right to sue upon them. The statement in the separate answer of defendants, above quoted, was not an admission, and, if it was, it was not inconsistent with the denial of the fact contained in the earlier part of the answer. At most it could only be regarded as describing the person of Linville. It does not purport to admit the assignment and cannot reasonably be given that effect.

Respondent is correct in stating that the reason for requiring proof of the assignment is to protect the defendant from any claim of the assignor, but it is not true, as claimed, that "when the assignor takes the stand for the plaintiff and . . . . the defendant admits a demand from the assignee, and notice from the assignor that he has assigned the claim to plaintiff, certainly the proof is sufficient to show an assignment. "Brown may not have had any assignment when he made the demand. Linville may not have in fact assigned his claim when he wrote he had done so. It was incumbent upon Brown to establish his right to sue, and this necessitated proof of the assignment by which alone he had any such right. It was as necessary for Brown to prove this fact as it was to prove the indebtedness. The fundamental error of respondent was in assuming what he now urges in his brief — that "the question of assignment only goes to the capacity to sue and not to the cause of action, and therefore if defendants wish to raise the question of assignment they must do so by a special defense, and cannot do so by a general denial."

The view we have taken makes it unnecessary to notice appellants' contention that the evidence was insufficient to justify the verdict; the evidence may not be the same at the second trial

It is advised that the judgment and order be reversed and the cause remanded.

Haynes, C., Gray, C., concurred.

For the reasons given in the foregoing opinion the judgment and order are reversed and the cause remanded.

Henshaw, J., Temple, J., McFarland, J.