Opinion of the Court-Beatty, J. above-entitled cause and said defendant, the Flora Mill and Mining Company and said C. H. Light— 66 1st. That said defendants waive all right of appeal to the Supreme Court in said cause, either from the judgment or decree, or supplemental decree in said cause, or any part thereof, or from any order, notice or ruling of said court, at any time made or entered in said cause, or from any part thereof. "2d. That a stay of an order of sale, or the issuance of an execution therein until the 1st day of April, a. D. 1875, shall be entered in said cause. "3d. That on said 1st day of April, 1875, said C. H. Light shall pay the whole amount of the judgment, interest and costs in said cause in gold coin, and that said mill shall remain, with its machinery and appurtenances, where it now is till that time. "4th. That in case said Light shall fail to pay said judg ment, costs and interest on said 1st day of April, 1875, as aforesaid, then said mill and property known as the Floral Mill, shall be sold as directed in said decree, according to law, and no further stay of an order of sale shall be granted in said cause. 5th. That it is the true intent of this agreement to give said Light time in which to pay said judgment, costs and interest without the expense of a sale of the property. "A. B. HUNT, Attorney for Plaintiffs. GARBER, THORNTON and KELLY, and "PIOCHE, NEVADA, Nov. 10, 1874. Attorneys for Defendants." The affidavits on file here prove beyond a doubt, and the fact is not disputed, that this stipulation was entered into at the request of the defendant Light, and signed by his attorneys upon his express direction. It is also shown that he has had all the benefit of a strict compliance by plaintiffs with their agreement to stay execution. But when, about the 1st of April, they demanded payment of their judg Opinion of the Court-Beatty, J. ments, he replied by filing notice of this appeal, and gave an undertaking to stay proceedings. [It is only just to add in this connection that the attorneys through whom the stipulation was entered into, dissolved all connection with the case when the appeal was taken.] Upon a certificate of the clerk of the district court, and affidavits showing the facts above recited, the respondents moved during the last term for a dismissal of the appeal and damages. Pending the decision of their motion, they filed, at the beginning of the present July term, an additional certificate of the clerk of the district court, showing that although the appeal was taken April 6, no transcript for this court had been ordered by the appellant up to July 5. Under a rule of this court, the appeal would be dismissed upon the facts presented by the latter certificate. But aside from the operation of that rule, we think this appeal should be dismissed on account of the stipulation. Stipulations of a similar character have been enforced in Bingham v. Thompson, 4 Nev. 224, and Townson v. Masterson Stone Dressing Co., 15 N. Y. 589. If the record was here we should decline to consider any question it might present. We are further of the opinion that as the appeal was manifestly taken merely for delay, damages should be awarded, and an occasion is presented for announcing that hereafter this rule will be observed in all similar cases: Ten per cent. of the judgment will be allowed, and if the act of the appellant occasions a delay of more than five months, damages will be allowed at the rate of two per cent. per month. The appeal in this case is dismissed, and the court below is directed to allow, by way of damages to each of the respondents, sixteen per cent. of their respective judgments; this to be in addition to costs and accruing interest, and to be entered as a judgment against the defendant Light. Remittitur forthwith. Statement of Facts. [No. 703.] J. W. PECK, RESPONDENT, v. ELLIOTT DODDS ET AL., APPELLANTS. ASSIGNOR OF ACCOUNT CANNOT SUE--WHEN.--The assignees of an account cannot authorize the assignor to bring suit in his own name, while they retain the absolute property in the account. IDEM-LIABILITY OF DEBTOR.-A debtor is not liable to the assignor and assignee of an account at the same time, and where the assignees have an undoubted right to sue, the assignor cannot maintain an action commenced in his own name. APPEAL from the District Court of the Seventh Judicial District, Lincoln County. The testimony offered by plaintiff to show a reassignment, by parol, of the account sued on, was as follows: J. W. Peck, plaintiff, testified "that he had a conversation, in June, 1874, with W. W. Bishop, attorney for the assignees of the account sued on; that Bishop asked him what he was going to do with the account; that about August 1st Bishop said to him: 'Well, you have done nothing about that collection yet.' I told him I had not. He turned around to me and said: 'Go and collect this in your own name; attach the cattle, if you can do no other way.' Witness had a conversation subsequent to this with Mr. Glissan, one of the assignees of the account, in which Glissan said to witness: 'You go and collect it in your own name. I understand they are moving their cattle to the railroad.' I told him I would. I then commenced this suit." Upon crossexamination, this witness said: "Bishop and Glissan never reassigned the account to me, nor have they verbally agreed to do so, except in the conversations spoken of. Bishop said I could not collect it except for the benefit of Glissan and Bishop. I never asked Glissan to reassign it to me." J. C. Foster testified that he heard a conversation between J. W. Peck and W. C. Glissan; that Peck insisted upon Mr. Glissan collecting the Dodds account; that Glissan told Peck to collect it himself in any way he could; Statement of Facts. that there was some disagreement between them as to what could be done. J W. W. Bishop, being sworn, said: "I had a conversation with plaintiff about the collection of this Dodds account, and I was asked what I wanted done with it. I said I wanted it collected. Glissan and Peck came to me to determine what was to be done with this account. I said I would not sue upon it, nor have anything to do with it until after Peck had made an effort to collect it, as he had stated at the time of the assignment that he could and would collect it if he had the authority to do so. I then said, 'Do anything you have a mind to; collect it, if you can.' Peck then asked if I would give him a written assignment for it. I said, 'No; because the moment I give that assignment, any creditor who has not been mentioned in the assignment can attach the money for Peck's debts, and that would destroy the force of this assignment.' Major Peck said: "The Dodds owe this money. I think I can collect it, and am willing to do all I can to help you get this money and everything else mentioned in the assignment, but I cannot act with my hands tied.' I said to him that I did not wish to tie his hands, nor to prevent his acting. I am willing to give you all the authority in this world to get this money and carry out your part of the agreement. All I ask is, that when the money is collected, that it shall be disposed of to pay your debts mentioned in the assignment." Referring to another conversation, this witness said: "I met Major Peck on the street, and he said, 'I want to sue the Dodds; they owe me that money, and I can make them pay it.' I then said, 'Sue them, and let the matter be settled one way or the other-the quicker the better.' He said, 'Do you authorize me to sue?' and I replied, 'Do what you please, I will have nothing to do with it. I don't want to be bound for any costs, nor be bothered with the matter. I have had all the trouble with this I am going to have.' He then said, 'Will you authorize me to sue?' and I said, 'Yes, as far as I can without releasing the money, for when it is collected it must be applied according to the terms of the assignment.' Argument for Respondent. * Upon cross-examination, this witness said: "I am the attorney in fact and at law for A. C. Bishop. * * I claim, as such attorney, that all money now due from the Dodds should be paid to Glissan and Bishop. I have never released it, except conditionally. * * * I released the privilege of the firm of a lawsuit. I positively refused to reassign, except that I said I would not do so except as above stated. I never agreed that I would reassign it to him so as that he should own the money. I wanted that Glissan and Bishop should have the money named in the assignmert. I always reserved the proviso that Glissan and Bishop should have all that money. I claim that instrument, as such, is in full force, and that if I came across any of that property or money mentioned, I would want it as their attorney." Pitzer & Corson, for Appellants. A. B. Hunt, for Respondent. I. Every suit shall be prosecuted in the name of the real parties in interest, except as otherwise provided in the practice act. This case does not come under the exception. (Compiled Laws, Sec. 1067.) II. A parol agreement to rescind a written contract is good, and such an agreement may be presumed from the acts of the parties. The law regards the substantial rights of the parties and will protect them. (Green v. Wells & Co., 2 Cal. 585; Dubois v. Delaware and Hudson Canal Co., 12 Wend. 334; Smith v. Gugerty, 4 Barb. 614.) III. Parol evidence is admissible to prove a waiver of a written agreement entered into by the parties. (Langworthy et al. v. Smith et al., 2 Wend. 588; Fleming v. Gilbert, 3 Johns. 529; Monroe v. Perkins, 9 Pick. 301; Lockwood v. Canfield, 20 Cal. 127; Carlyon v. Lannan, 4 Nev. 156; Bingham et al. v. Thompson, 4 Nev. 224.) IV. Plaintiff was the proper party to bring this suit. He was the only and real party in interest. The assignees were to pay the debts out of the assets of plaintiff's property. No |