Opinion
Department Two
Appeal from a judgment of the Superior Court of the City and County of San Francisco.
COUNSEL:
George A. Rankin, and Henry I. Kowalsky, for Appellant.
Fox, Kellogg & King, for Respondent.
JUDGES: De Haven, J. Fitzgerald, J., and McFarland, J., concurred.
OPINION
DE HAVEN, Judge
[38 P. 518] The defendant appeals from a judgment against him. The appeal is brought here upon the judgment-roll, which does not contain any bill of exceptions. The court below overruled a general demurrer to the complaint, and the appellant claims that this ruling was erroneous, and that the judgment should be reversed upon the ground that the complaint does not state facts sufficient to constitute a cause of action.
The plaintiff sues as assignee of one Pendleton, and the complaint alleges, among other matters, that "on the 17th day of April, 1891, the said defendant was indebted to W. H. Pendleton, of Lawrence, Kansas, in the full sum of fifteen hundred and ninety ($ 1,590) dollars, as and for the purchase price of four hundred cases of eggs theretofore sold by the said Pendleton to the said defendant, and delivered free on board at Lawrence, Kansas; that on that day, to wit, the 17th day of April, 1891, the said W. H. Pendleton made and executed his certain draft on the said defendant under and by the name of 'Kowalsky & Co.,' in the words and figures following, to wit:
" '$ 1,590. April 17, 1891.
" 'Pay to the order of H. C. Vaughan cash fifteen hundred and ninety dollars, value received, and charge the same to account of W. H. Pendleton.
" 'To Kowalsky & Co.,
" 'No., San Francisco, Cal.'
" That the said H. C. Vaughan was then, and ever since has been, and still is, cashier of this plaintiff; that for valuable consideration said Pendleton then and there on the 17th day of April, 1891, sold and delivered the said draft to this plaintiff, and thereby assigned and transferred to this plaintiff his claim against the said defendant doing business under the name of Kowalsky & Co., and the said plaintiff then and there became, ever since has been, and still is, the owner and holder of the said draft, and of the said claim, and of all moneys due thereon."
The objection urged against the complaint is that it does not sufficiently set forth an assignment to plaintiff of defendant's alleged indebtedness to Pendleton. The complaint is certainly very carelessly drawn, but is, we think, sufficient to sustain a judgment, and, therefore, the general demurrer was properly overruled. An equitable assignment of a specific demand or particular indebtedness may be effected by means of an instrument having the form of an order or bill of exchange drawn by the creditor upon the debtor for its full amount, when such is the intention of the drawer and payee, and it is not essential that the intention to make such assignment should appear upon the face of the order or bill of exchange (Bank of Commerce v. Bogy , 44 Mo. 13; 100 Am. Dec. 247; 1 Daniel on Negotiable Instruments, 4th ed., sec. 20; Wheatley v. Strobe , 12 Cal. 92; 73 Am. Dec. 522), and it was not the intention of this court to overrule the latter case by any thing said in the course of the opinion in Cashman v. Harrison , 90 Cal. 297.
While the complaint here does not in direct terms allege that the draft therein set out was drawn for the purpose of making an assignment to plaintiff of the drawer's demand against defendant on account of the eggs sold and delivered to him as alleged, still the complaint is not wholly silent as to the fact of the assignment, and, while it must be conceded that its allegation in relation thereto is informal and argumentative, this objection to the complaint is one that could only be reached by a special demurrer. It is only when a complaint entirely fails to state some fact necessary to uphold the judgment that this court will reverse the judgment because of the failure of the lower court to sustain a general demurrer to the complaint.
But, in addition to this, the answer in this case presents the issue as to the assignment of defendant's indebtedness from Pendleton to plaintiff, and we must presume in support of the judgment that the fact was litigated upon the trial, and that the case was there treated by the parties as involving that issue.
Judgment affirmed.