( FarmlandIrr. Co. v. Dopplmaier (1957) 48 Cal.2d 208, 222 [ 308 P.2d 732, 66 A.L.R.2d 590]; Prichard v. Kimball (1923) 190 Cal. 757, 764-765 [ 214 P. 863]; Simmons v. Zimmerman (1904) 144 Cal. 256, 260-261 [ 79 P. 451, 1 Ann.Cas. 850]; La Rue v. Groezinger, supra, 84 Cal. 281, 285; Coykendall v. Jackson (1936) 17 Cal.App.2d 729, 731 [ 62 P.2d 746]; see 4 Corbin, Contracts (1951) ยง 865; 3 Williston, Contracts (3d ed. 1960) ยง 412, pp. 32-33; Rest., Contracts (Tent. Draft No. 3, 1967) ยง 150(2).)
Cases proving the tendency of the doctrine to assignability found among our decisions are many. A few may be cited: Simmons v. Zimmerman, 144 Cal. 256, 261 [1 Ann. Cas. 850, 79 P. 451]; Perkins v. Sunset Tel. Tel.Co., 155 Cal. 712 [ 103 P. 190]; Estate of Baker, 170 Cal. 578, 587 [ 150 P. 989]; Stapp v. Madera Canal etc. Co.,supra, at p. 46 [ 166 P. 823]; McCord v. Martin, 34 Cal.App. 129 [ 166 P. 1014]; Harris v. Mount Washington Co., 55 Cal.App. 144, 146 [ 202 P. 903]. In other jurisdictions we find ample support for the holding we have announced.
There are no words of limitation in the option to purchase forbidding its assignment, or that it was given because of a peculiar trust or confidence reposed in the optionee. (25 Cal. Jur., p. 509, sec. 37; Simmons v. Zimmerman, 144 Cal. 256 [1 Ann. Cas. 850, 79 P. 451]; Blakeman v. Miller, 136 Cal. 138 [89 Am. St. Rep. 120, 68 P. 587].) [4] Defendant urges that the contracts sued upon are not fair and reasonable as to defendant and because of this that they cannot be specifically enforced.
[6] The above rules apply in principle to the instant case, in which the facts reasonably created an apprehension of the necessity for supporting the validity of the mortgage by proof not shown by the public records and dependent upon extrinsic evidence. [7] Whether there were creditors of the mortgagors in a position to attack the mortgage does not appear from the record; but if it be assumed that respondent would be obliged to accept a mortgage shown by the public records to be reasonably subject to objection but which in fact created a valid lien, the burden of proving the fact rested upon appellant ( Simmons v. Zimmerman, 144 Cal. 256 (1 Ann. Cas. 850, 79 P. 451]). An offer was made by the latter to procure the execution to respondent of a new mortgage upon the same property for the same purpose and, presumably, though the record does not show the fact, by the same mortgagors, which offer was not accepted for the reason, as testified by the attorney for respondent, that, under the terms of the memorandum, there appearing reasonable grounds for not approving the lease in question, respondent was not bound to proceed.
"In this state `Every action must be prosecuted in the name of the real party in interest' (Code Civ. Proc., sec. 367); and whatever the common-law rule, or the reason for its origin, may have been, it is certain that the immediate effect of the several code sections just cited is to permit the assignee of a contract of guaranty โ which is but a chose in action โ to sue thereon in his own name. ( La Rue v. Groezinger, 84 Cal. 281 [18 Am. St. Rep. 179, 24 P. 42]; Rued v. Cooper, 109 Cal. 682 [34 P. 98]; Simmons v. Zimmerman, 144 Cal. 256 [1 Ann. Cas. 850, 79 P. 451]; Weir v. Anthony, 35 Neb. 396 [53 N.W. 206]; Small v. Sloan, 1 Bosw. (N.Y.) 352; Wood v. Farmer, 200 Mass. 209 [ 86 N.E. 297]; First Nat. Bank v. Carpenter, 41 Iowa, 518; see Cunningham v. Norton, 5 Cal. Unrep. 35 [40 P. 491].) "If the contract of guaranty in the case at bar had been specifically limited to the lessor named in the lease, there would have been much force in the contention that the obligation of the guarantor was purely personal, and that its assignment, before default of the lessee, operated as a discharge of the obligation.
The demand constituted a chose in action of an assignable kind: "Assignability of things in action is now the rule; non-assignability the exception; and this exception is confined to wrongs done to the person, the reputation, or the feelings of the injured party, and promises of a purely personal nature." ( Rued v. Cooper, 109 Cal. 682 [34 P. 98]; Simmons v. Zimmerman, 144 Cal. 256 [1 Ann. Cas. 850, 79 P. 451]; 2 Ruling Case Law, p. 395; Civ. Code, sec. 954) Upon the rejection of the claim by the executrix the claimant became entitled to bring suit thereon. This right could be exercised by the claimant Anderson or his subsequent assignee.
In this state "Every action must be prosecuted in the name of the real party in interest" (Code Civ. Proc., sec. 367); and whatever the common-law rule, or the reason for its origin, may have been, it is certain that the immediate effect of the several code sections just cited is to permit the assignee of a contract of guaranty โ which is but a chose in action โ to sue thereon in his own name. ( La Rue v. Groezinger, 84 Cal. 281, [18 Am. St. Rep. 179, 24 P. 42]; Rued v. Cooper, 109 Cal. 682, [34 P. 98]; Simmons v. Zimmerman, 144 Cal. 256, [1 Ann. Cas. 850, 79 P. 451]; Weir v. Anthony, 35 Neb. 396, [53 N.W. 206]; Small v. Sloan, 1 Bosw. (N.Y.) 352; Wood v. Farmer, 200 Mass. 209, [ 86 N.E. 297]; First Nat. Bank v. Carpenter, 41 Iowa, 518; see Cunningham v. Norton (Cal.), 40 P. 491.) If the contract of guaranty in the case at bar had been specifically limited to the lessor named in the lease, there would have been much force in the contention that the obligation of the guarantor was purely personal, and that its assignment, before default of the lessee, operated as a discharge of the obligation.
The text is based on the Oregon case cited, but it would seem the rule should be limited to cases where, by the terms of the option, the optionee may arbitrarily reject the title. If the optionee may not reject the title except upon some ground sufficient in law, that is, on the ground that the title is not marketable within the rule, it is not apparent why deposit or payment on the price, in such case, is not a consideration, even though it is to be returned to the optionee in the event the title is found unmarketable. See Simmons v. Zimmerman, 144 Cal. 256, 79 P. 451, 1 Ann. Cas. 850."
Farmland Irrigation Co. v. Dopplmaier, 48 Cal.2d 208, 308 P.2d 732, 740, 741 (1957) citing 2 Williston, Contracts (rev ed) 1177-1182, (3d ed) 20; 1 Restatement, Contracts ยง 151. See also Simmons v. Zimmerman, 144 Cal. 256, 79 P. 451 (1904). The June 1951 agreement expressly provided that:
As a general rule the interest under an ordinary option to purchase, that is, the right to elect to take a conveyance, is recognized as an assignable interest, and a fortiori this is true where the option runs to the person named "and his assigns." Simons v. Zimmerman, 144 Cal. 256, 79 P. 451, 1 Ann. Cas. 850; Roper v. Milbourn, 93 Neb. 809, 142 N.W. 792, Ann. Cas. 1914B, 1225; Kerr v. Day, 14 Pa. St. 112, 53 Am. Dec. 526; 27 R.C.L. 345; Hutchinson v. Simon, 57 Miss. 628; Redwood Co. v. Foote, 58 Miss. 12; Moody v. Kyle, 34 Miss. 506; Richardson v. Lightcap, 52 Miss. 508; Fitch v. Stamps, 6 How. (U.S.) 487; Christmas v. Russell, 14 Wall. (U.S.), 69, 20 L.Ed. 672; 2 Story Eq. Jur., par. 1044; R.C.L. 512; Horn v. Butler, 39 Minn. 515, 40 N.W. 833; Brown v. Widen (Iowa), 103 N.W. 158; Boas v. Farrington, 85 Cal. 535, 24 P. 787; Noyes v. Johnson, 139 Mass. 436, 31 N.E. 767; Zunker v. Keuhn, 113 Wis. 421, 88 N.W. 605; Heller v. Cohen, 154 N.Y. 299, 48 N.E. 527; Howe v. Hutchinson, 105 Ill. 501; Gwin v. Calegaris, 139 Cal. 834, 73 P. 851; Bruce v. Wolfe, 102 Mo. App. 384, 76 S.W. 723; Howe v. Coates, 107 N.W. 397 (Minn.), 4 L.R.A. 1171; Bowles v. Umberson, 101 S.W. 842; Danzer v. Moerschel, 214 S.W. 849 (Mo.), 7 A.L.R. 1162-1180.