ON REHEARING. Appellant, in its motion for rehearing, charges, first, that the opinion herein erroneously states the facts in this particular, to-wit:
"Either at the time of the payment of the $1000 or the payment of the $3400 note, which was met when it fell due, Pratt turned over and endorsed to plaintiff the note and chattel mortgage and also assigned to him his right to bring suit against the defendant for conversion."
Appellant insists there is no proof that, at any time before the trial of the cause, Pratt assigned to plaintiff his right to bring suit against the defendant for conversion.
We can but construe appellant's position in this respect as due to its theory of the case, to-wit, that the written assignment upon the note and mortgage did not carry with it the right to sue appellant for conversion. This was a controverted issue and appellant is in error in stating that "there is no proof that at any time before the trial of the cause Pratt assigned to plaintiff his right to bring suit against the defendant for conversion." The record shows, and the opinion so states, that both Pratt and plaintiff testified that, at the time the assignment was made, the very point under consideration was mentioned between them. The purport of the conversation was that Pratt would turn over to plaintiff all the papers in the case, and plaintiff could proceed against whomsoever he chose. Plaintiff testified that appellant's name was specifically mentioned in that connection as a defendant in any attempt to collect for the proceeds of the two carloads of cattle alleged to have been converted. To say there was no testimony to that effect is erroneous.
The theory upon which our opinion was based and upon which the cause was tried is that the assignment of the note and mortgage conveyed the right to sue appellant for conversion. It was upon this theory that that part of the statement of facts, of which complaint is made, was bottomed, and we now hold it is literally correct and not open to the objection urged against it.
Parties agree that there is no case in this State directly decisive of this point. Appellant relies largely upon the case of Gabbert v. Wallace, 66 Miss. 618, wherein the court said:
"The right of the assignee to recover the debt and to subject to its payment the mortgaged property is, we think, the measure of his rights, unless there appears in the assignment something indicating a purpose by the mortgagee to assign also the right to proceed against third persons who have during his interest in the property injured or converted it."
There is nothing in the assignment, as written, to indicate that Pratt signified his intention to transfer his right to sue for conversion. But in the Gabbert-Wallace case, the opinion goes further: *Page 428
"The right to sue was one which the mortgagee might either exercise or waive. He might, it is probable, assign it to the assignee of the mortgage debt, but he might also in an assignment of the debt reserve from the assignee the right to pursue others who before that time had injured or converted the mortgaged property."
In the case at bar it is not claimed that Pratt, in the assignment, did reserve his right to pursue the party who had injured or converted the property. The Gabbert opinion, in view of its apparent fluctuating positions, hardly can be accepted as a substantial precedent for a ruling herein. We think our Supreme Court in Sherman v. Life Ins. Co., 236 S.W. 234, has determined the question of the purport of an assignment wherein the assignor transfers "all his right, title and interest" in the instrument assigned. The court said:
"It cannot be supposed, therefore, that the holders of the certificate by their assignments of them to plaintiff intended to invest him with title to the papers merely, while retaining the causes of action of which they afforded in part the sustaining proof and apart from which they were wholly without value. It seems entirely clear that the assignments of the certificate were intended to effect and did effect assignments of the causes of action to which plaintiff is asserting title by this suit."
We think there is no question but that the above excerpt declares the law in this State upon the question involved. We hold, therefore, that the opinion herein did not erroneously state the facts, as charged in the motion for rehearing. The other points raised in the motion for rehearing are held to be statements in different forms of appellant's position. All of these points were fully considered heretofore and determined against appellant's contention, and we hereby adhere to the original opinion in this cause. Bland, J., concurs; Trimble,P.J., absent.