Sterling Adjustment Co. v. Laher Auto Spring Co.

Upon a trial by the court sitting without a jury plaintiff recovered judgment in the sum of $2,509.94, with interest, for goods alleged to have been sold and delivered to defendant by plaintiff’s assignor. Defendant appeals from the judgment.

Appellant contends that the findings are not supported by the evidence. In our opinion this contention must be sustained, but we do not deem it necessary to discuss all of the various claims of insufficiency. Respondent’s right to recover as the alleged assignee of the seller of the goods was dependent upon allegation and proof of an assignment. An assignment was alleged and made an issue by the pleadings, but the record fails to disclose any evidence to support the finding that such assignment had been made. Respondent argues that “the finding as to the assignment is a technicality not involving a substantial right of appellant”. We do not believe that it may be so considered, for where an action is brought by an alleged assignee, the allegation of the complaint relating to the assignment must be proved as formally as any other material allegation. (Brown v. Curtis, 128 Cal. 193 [ 60 Pac. 773 ]; Ford v. Bushard, 116 Cal. 273 [ 48 Pac. 119…