Ford v. Bushard

Citations

• 116 Cal. 273
• 48 P. 119
• 1897 Cal. LEXIS 537

Syllabus

<p>Sale of Orange Trees—Action for Breach of Contract—Assignment Pendente Lite — Substitution of Assignee — Supplemental Complaint—Denial—Proof of Assignment.—Where after the bringing of an action for damage for breach of a contract for the sale and delivery of particular kinds of orange trees, an assignment was made by the plaintiff to his wife of all his right and interest in the contract, just prior to plaintiff’s decease, and the assignee having been substituted as such, and not as the personal representative of the deceased, filed a supplemental complaint by leave of the court, alleging the assignment, and the death of the plaintiff, the defendant has the right specifically to deny the allegations of the supplemental complaint, and the assignee cannot recover, as against such denial, without proof of the assignment.</p> <p>Id. — Ex parte Substitution—Presumption upon Appeal — Answer — Waiver.—Where the record upon appeal is silent as to whether the substitution of the assignee was or was not ex parte, it will be presumed on appeal in favor of the regularity of the proceeding that notice was given; but if the order was made ex parte, the answer to the supplemental complaint of the assignee is a waiver of error in that regard.</p>