De Sobry v. Nicholson

Mr. Dobbin, for the plaintiff in error: The citizenship of the parties to the proceeding is no doubt sufficiently set forth; but it is not so as to that of the members of the firm with whom De Sobry, the here plaintiff in error, is alleged to have entered into the contract on which the action is founded. The allegation as to their citizenship does not refer to the time of the institution of the suit, as it should do, but to the date of the contract. Since that date and before bringing the suit it was changed. The language of the Judiciary Act would seem to establish, by itself, without need of interpretation, that whenever there is a suit upon a chose in action assigned, the assignor must be (and of course must be distinctly alleged to be) a citizen of a different State from that of the defendant, at the time of suit brought. And this is conceded by the authorities.1 That the defendant in error claims as assignee, is manifest from the petition itself; for, according to its allegations, he was but one of the original contractors, and only became 'owner' of the contract upon the dissolution of the firm, the date of which is not set forth. Of course, he could only have acquired the sole interest in a joint contract by assignment of the interests of his co-contractors. Nor does he even aver that he himself wholly performed the contract, or that no part of it had been performed before he became owner. On the contrary, he only and cautiously charges that he became owner 'before the completion of the contract,' and the part which he alleges that he performed was simply that of 'delivering' and 'putting up' the mill; not that of 'building' it, which was the heaviest part of the job for which the contract provided.