
    Lowry v. Anderson.
    
      Transfer by plaintiff of interest in pending action — How suit may proceed.
    
    Upon the transfer by a plaintiff, during the pendency of an action, of all his interest therein, the action may proceed in the name of such plaintiff, or the court may allow the person to whom the transfer is made to be substituted; but such transfer is no defense to the action.
    (Decided November 23, 1897.)
    Error to the Circuit Court of Seneca county.
    George Lowry brought an action in the court of common pleas against William R. Anderson, defendant, seeking to cancel and set aside a license given by him to Mr. Anderson to manufacture a rock breaker and ore crusher under letters patent held by Mr. Lowry. The grounds alleged for the cancellation of the license were that Mr. Anderson had failed to comply with the conditions of the license, which failure avoided the same.
    The answer was in effect a general denial. Afterward the defendant filed a supplemental answer as follows:
    “Said defendant says that he is informed, and believes the fact to be, and hence avers that said plaintiff -since the commencement of the action to-wit: On or about the 7th day of October, 1893, sold, assigned and transferred to The Gates Iron ' Works, of Chicago, Illinois, all of his right, title and interest in the contract set forth as “Exhibit A” in plaintiff’s petition herein, and that it, the said Gates Iron Works Company, has been, since said 7th day of October, 1893. and still is the sole owner thereof.”
    
      To this supplemental answer the plaintiff demurred, on the ground that it did not state facts sufficient to constitute a defense to plaintiff’s cause of action.
    The record fails to show what ruling the court made on this demurrer, but it appears that the plaintiff filed the following reply:
    “The plaintiff for reply to the supplemental answer filed herein denies:
    “That the plaintiff has assigned to said Gates Iron Works all of his right, title and interest in the contract set forth in “Exhibit A” of the petition herein. But he says that on October 7, 1893, he made a conditional assignment of said contract to said Gates Iron Works, by which said assignee reserved the right to terminate said assignment at will and reassign said contract to the plaintiff.”
    The defendant filed a demurrer to the reply, on the ground that it was insufficient in law, and stated no defense to the supplemental answer.
    The cause was pending in the circuit court on appeal, and that court sustained the demurrer to the reply, and the plaintiff not desiring to plead further, the court found, upon the supplemental answer, in favor of the defendant and against the plaintiff, and dismissed the petition at the cost of the plaintiff.
    Thereupon the plaintiff filed his petition in error in this court, seeking the reversal of the judgment of the circuit court.
    
      J. F. Bunn and McCauley & Weller, for plaintiff in error.
    
      Rohn & Baker, and Geo. E. Schroth, for defendant in error.
   By the Court:

The supplemental answer does not state facts sufficient to constitute a defense to the action, and the demurrer to that answer should have been sustained. But passing that point, the supplemental answer does not contain facts sufficient to warrant a finding and judgment upon it in favor of the defendant and against the plaintiff.

By section 5012, Revised Statutes, it is provided, that upon the’ transfer of interest in an action, the action may be continued, in the name of the original party, or the court may allow the person to whom the transfer is made to be substituted for him.

The cause of action existed against Mr. Anderson, after the assignment the same as before; and by virtue of said section 5012, the action might proceed in the name of the original plaintiff, or if desired, the name of the iron works might have been substituted for him; but the transfer of interest was no defense to the action, and could not warrant a finding and judgment upon the merits in favor of the defendant.

The circuit court therefore erred in applying the law to the facts before it, and its judgment is con-: trary to law.

Judgment reversed, and cause remanded.  