The opinion
STOCKSLAGER, C. J.,
Dissenting.- — -I cannot concur in the conclusion reached by my associates, for the reason that I do not believe the plaintiffs are entitled to any relief. Before a plaintiff can recover in a civil action of this character, he must show he is the real party in interest. In this ease Later Bros, plead they are entitled to the relief prayed for, and if they prove anyone is entitled to an equity in the property in controversy, it is the Rigby Hardware, Lumber and Manufacturing Company. The proof shows that Later Bros, and others organized a corporation called the Rigby Hardware, Lumber and Manufacturing Company; that corporation took over all the assets of Later Bros. Later Bros, ceased to exist as a copartnership after the incorporation of the Rigby Hardware, Lumber and Manufacturing Company, and the equity, if any, in the property in controversy, passed to the .Rigby Hardware, Lumber and Manufacturing Company as one of the assets of Later Bros.; the corporation is still in existence. We find a letter in the record that throws much light on the question before us.
*85 “Rigby, Idaho, June 21, 1904.
“Mrs. Martha Haywood, Rigby, Idaho.
“Dear Madam: Your proposition made to us through Richard Later to pay us $140 in full for our claim against the property you hold as security for loan, being lots 5 and 6, block 2, town of Rigby, has been considered by the directors of our company and refused. We feel that this company has been as generous with you in this matter as any sane person could wish. We wish to avoid trouble and foreclosure proceedings, but in this matter you certainly cannot object to the ultimate result of such procedure. The members of our company insist on immediate action being brought to recover the amount due us, with interest, and have instructed the undersigned to notify you that unless you pay to this company before the morning train leaves for St. Anthony Friday, the 23rd inst. the sum of $150.00 (being the proposition made to you on the 18th inst.) the said proposition will be off, and we shall go to the county seat and institute foreclosure proceedings. This proposition is final and do not expect further overtures from us, for none will be made.
“Most respectfully yours,
“THE RIGBY HARDWARE, LUMBER & MANUFACTURING COMPANY,
“Per George Hill, Jr.,
' “Secretary and Treasurer.”
This letter would indicate that the business officer of this corporation believed the Rigby Hardware, Lumber and Manufacturing Company had some kind of a claim against respondent. There is no dispute about the claim referred to being the same one upon which this action is predicated. The record fails to disclose any transfer of this claim from the Rigby Hardware, Lumber and Manufacturing Company to Later Bros, after the time this letter was written and the commencement of this action. The motion for nonsuit was sustained on the ground of fatal variance between the pleadings and proofs and other grounds. I do not think there was any error in the ruling of the court in sustaining this motion, at least *86 on the ground above indicated, and the judgment should be affirmed.
(March 16, 1906.)