Opinion
June 19, 1973.
Editorial Note:
This case has been marked 'not for publication' by the court.
Lewis, Jones & Ellwood, Henry V. Ellwood, Denver, for plaintiff-appellant.
John P. Moore, Deputy Atty. Gen., John E. Bush, Arthur P. Roy, Asst. Attys. Gen., Fort Collins, for defendant-appellee.
Page 504
ENOCH, Judge.
Harambee Enterprises, Inc., plaintiff-appellant, doing business as Sound Odessy, brought suit against the State Board of Agriculture, defendant-appellee, in its capacity as the governing body of Colorado State University (CSU) for a portion of a deposit fund claimed to be wrongfully withheld. CSU filed a motion for a summary judgment on the ground that Sound Odessy was not the real party in interest, and it filed an amended motion on the ground that Sound Odessy failed to join an indispensable party. The trial court granted CSU's motion for a summary judgment and dismissed the complaint on the ground that, by virtue of Sound Odessy's complete assignment of its rights to the deposit funds, it is not a real party in interest under C.R.C.P. 17. We reverse.
This case arose from business circumstances surrounding the performance of musician Isaac Hayes at the CSU auditorium on January 31, 1971. CSU had entered into a lease agreement on January 6, 1971, with Sound Odessy and the Black Student Alliance at CSU, as joint tenants, for the use of the auditorium. In accordance with the lease agreement Sound Odessy deposited with CSU $8,000 for security. Sound Odessy's contract with Isaac Hayes called for $20,000 to be paid to the performer. On the day of the performance Sound Odessy was obligated to pay Hayes $10,000 of the contract price but was unable to do so. Therefore, Hayes was given an assignment of Sound Odessy's 'right title and interest to any refund due and owing to them (Sound Odessy and the Black Student Alliance) from The State Board of Agriculture.' The day following the performance, CSU paid Hayes $2,764.40 pursuant to the assignment. CSU presently holds $3,998.08 of undisbursed deposit funds.
The only issue presented for review by Sound Odessy is whether the court was correct in granting the motion for summary judgment on the basis that the action was not being maintained by the real party in interest. Sound Odessy contends that the trial court erred in concluding that there was a complete assignment of all rights to Hayes. It is claimed that Sound Odessy was entitled to, but not given, the opportunity to prove at trial that its assignment to Hayes was for the purpose of collateral security. We agree that Sound Odessy should have such opportunity.
If an assignor has not assigned his entire claim, he can still maintain an action in his own name. Wells v. Crawford, 23 Colo.App. 103, 127 P. 914. The fact that an assignment appears to be absolute in form is not conclusive in regard to the question of intention. Parol evidence can be used to show, for example, that an assignment was executed in order to provide security and, therefore, was a pledge. Butler v. Rockwell, 14 Colo. 125, 23 P. 462. Even though the assignment appeared to be complete on it face, Sound Odessy has the right to present evidence to the contrary.
On remand the trial court will be faced with the problem of determining whether Hayes should be joined as an indispensable party under C.R.C.P. 19. This problem was discussed in the briefs and posed during arguments of counsel. Resolution of this issue, however, will depend upon the evidence presented regarding Hayes' interest in the deposit funds; thus, such issue may not be determined at this time.
Judgment is reversed and cause remanded for further proceedings for inconsistent with this opinion.
DWYER and SMITH, JJ., concur.