PART VI. — THE

THE ASSIGNMENT OF THE

CONTRACT.

§ 2644.

§ 2645.

CHAPTER CXXVI.

ASSIGNMENT OF CONTRACTS.

Choses in action not assignable at common law.
Rule in equity.

§ 2646. Assignments not recognized in equity - Voluntary assignments.

§ 2665. Liability of assignor.

§ 2666. Assignment by new agreement of all parties.

§ 2667.

Assignee may sue in his own name.

§ 2644. Choses in Action not Assignable at Common Law. At common law a chose in action, i. e., a right arising from a contract, and a right of action for the breach of a contract, was not assignable by act of the parties.1

§ 2645. Rule in Equity.-The rule of the common law was not, however, followed in courts of equity, an

1 Master v. Miller, 4 Term Rep. 340; Beecher v. Buckingham, 18 Conn. 110; 44 Am. Dec. 580.

equitable assignment of a chose in action being considered in the nature of an agreement on the part of the assignor to permit the assignee to make use of his name to recover by action at law, which a court of equity would specifically enforce. No particular form was necessary.2 Any order, writing, or act which made an appropriation of a fund was a good assignment in equity. So an order to pay part of a fund not in existence will, upon the fund coming into existence, operate as an equitable assignment.1

§ 2646. Assignments not Recognized in Equity Voluntary Assignments.- Equity will not assist a voluntary assignment of a contract or chose in action, nor an imperfect gift that is not completed in law. But if the transaction, though it may be imperfect as a voluntary assignment or gift, can be construed as a declaration of trust, it will be carried into effect; because a complete'declaration of trust does not require a valuable consideration to support it against the trustee. In equity the consideration of natural affection will support the assignment of a bond to convey land."

§ 2647. Other Cases. The matter of the contract might be such as not to admit of a transfer or assignment, either at law or in equity; as in the case of a contract involving a personal relation or confidence between the

1 Leake on Contracts, 1166; Crouch v. Credit Foncier, L. R. 8 Q. B. 380; Tibbets v. Gerrish, 25 N. H. 41; 57 Am. Dec. 307; Smith v. Brittain, 3 Ired. Eq. 347; 42 Am. Dec. 175.

Tingle v. Fisher, 20 W. Va. 497. Shannon v. Hoboken, 37 N. J. Eq. 123; Bower v. Hadden Co., 30 N. J. Eq. 171.

Risley v. Smith, 39 N. Y. Sup. Ct. 137. Reversed 64 N. Y. 576.

Leake on Contracts, 1170.

Elliston v. Elliston, 1 White and Tudor's Lead. Cas. 336. "A declaration of trust purports to be, and is

in form and substance, a complete transaction, and the court need not look beyond the declaration of trust itself or inquire into its origin; whereas an agreement or attempt to assign is, in form and nature, incomplete, and the origin of the assignment must be inquired into by the court; and where there is no consideration, the court, upon its general principles, cannot complete what it finds imperfect": McFadden v. Jenkyns, 1 Hare, 462.

Pawling v. Speed, Litt. Sel. Cas. 77; 12 Am. Dec. 269.

parties that is incapable of being transferred to other parties.' Accordingly, a contract between an author and a publisher for the publication of a work was held to be incapable of assignment by the publisher to another, on account of the personal trust reposed by the author in the publisher, nor is the benefit of such a contract transferred on the bankruptcy of the publisher to his trustee.2 So equity will not enforce an assignment which is tainted with fraud or champerty.3

§ 2648. Choses in Action Assignable by Statute.—In most of the states all choses in action arising upon contract may be assigned so as to vest the title in the assignee.1

§ 2649. What Things are Assignable - Interests in Lands. Estates and interests in lands and tenements are assignable. Thus the following have been held assignable: A bond to convey land;5 an equity of redemption;" an estate at will; the interest of a lessor; a lease; a mining privilege; rent reserved in a lease;" the right to betterments.12

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§ 2650. Chattel and Other Rights.—Generally, rights which are assignable in equity are assignable under the codes. The test of whether a cause of action is assignable is, Would it survive to the executors or administrators of the assignor in case of his death? If it would, it is

1 Leake on Contracts, 1168.

2 Gibson v. Carruthers, 8 Mees. & W. 343; Stephens v. Benning, 1 Kay & J. 168.

Fletcher v. Ferrel, 9 Dana, 372; 35 Am. Dec. 143.

* 1 Stimson's American Statute Law, 4031; Jordan v. Thornton, 7 Ark. 224; 44 Am. Dec. 546; Doering v. Kenamore, 86 Mo. 588; Snyder v. R. R. Co., 86 Mo. 613; Davis v. R. R. Co., 25 Fed. Rep. 786.

5 Ensign v. Kellogg, 4 Pick. 1.

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Bigelow v. Willson, 1 Pick. 485. Cody v. Quarterman, 12 Ga. 386. 8 Willard v. Tillman, 2 Hill, 274. Garner v. Byard, 23 Ga. 289; 68 Am. Dec. 527; Scott v. Berry, 46 Ga. 395.

10 McBee v. Loftis, 1 Strob. Eq. 90. 11 Van Rensselear v. Hays, 19 Ñ. Y. 68; 75 Am. Dec. 278.

12 Lombard v. Ruggles, 9 Me. 62. 13 Strong v. Clem, 12 Ind. 39; 74 Am. Dec. 200; McMahon v. Allen, 12 Abb. Pr. 278; 34 Barb. 63.

assignable. In New York all demands arising from injuries to property are assignable. Thus a right of action for the conversion of personal property is assignable, or a right of action for negligently setting a fire which runs over claimant's land."

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And the following have been held assignable: The claim of a sheriff for services which have been rendered and expenses which have been incurred in the execution of process; an attorney's lien for services on a judgment; costs due the clerk of a court; a cause of action by a public officer against an intruder for wrongfully receiving the fees of the office; a cause of action against a sheriff for making a false return, and for failing to return an execution within the time required by law; a special tax bill;" a tax voted in aid of a railroad, after it has been collected by the county treasurer;" a contract in writing not to navigate certain waters for a certain term of years; a right of action for injury to cattle; the right to recover for infringements of a patent;" a county order for taxes refunded, payable at a fixed time, with interest; 15 a prom

'Smith v. Smith, 9 Abb. Pr. 422; Devlin v. Mayor, 63 N. Y. 15; Dunning . Fay, 38 Barb. 20; Gould v. Gould, 36 Barb. 275; Mackey v. Mackey, 43 Barb. 61; Rutherford v. Aiken, 3 Thomp. & C. 62; Drake v. Smith, 12 Hun, 533; Fried v. R. R. Cơ., 25 How. Pr. 285.

2 Smith v. R. R. Co., 28 Barb. 606; Foy v. R. R. Co., 24 Barb. 383; Whitney v. Slauson, 30 Barb. 279; Gould v. Gould, 36 Barb. 275; Genet v. Howland, 45 Barb. 566; Byxbie v. Wood, 24 N. Y. 612; McBride v. Bank, 26 N. Y. 456; Merrill v. Grinnell, 30 N. Y. 614; Drake v. Smith, 12 Hun, 533; Alt v. Weidenberg, 6 Bosw. 178; Lamphire . Hall, 26 How. Pr. 512.

3 McKee v. Judd, 12 N. Y. 622; 64 Am. Dec. 515; Zabriskie v. Smith, 13 N. Y. 322; 64 Am. Dec. 551; Sherman v. Elder, 24 N. Y. 384; Fulton v. Baldwin, 37 N. Y. 650; Hicks v. Cleveland, 48 N. Y. 92; Duell v. Cudlip, 1 Hilt. 168; Graves v. Spier, 58 Barb.

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issory note payable in bank notes, though not negotiable;1 a book-account; a debt evidenced by a lost note;3 the lien of a material-man or mechanic; a claim against the winner at play; a claim for damages for infringement of a trade-mark; a verdict for damages, although the action in which the verdict was obtained was for a personal tort;7 a policy of insurance, a loss having happened; a policy of life insurance; an undertaking given to procure an order of arrest; 10 a subscription made for the purpose of erecting a church."

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§ 2651. Judgments. At common law, the assignment of a judgment did not authorize the assignee to bring an action on it in his own name.' But by statute in most of the states the assignee is given complete control of the judgment assigned to him.13

§ 2652. Assignment of Things not in Existence. - At law it is held that an assignment, to be valid, must be of a thing which, at the time, has an actual, potential existence. 14 But "courts of equity will support assignments, not only of choses in action, but of contingent interests and expectations, and of things which have no present

I Wolfe v. Tyler, 1 Heisk. 313.

2 Clark v. Wiss, 34 Kan. 553. 3 Long v. Constant, 19 Mo. 321; 61 Am. Dec. 559.

Tuttle v. Howe, 14 Minn. 145; 100 Am. Dec. 205.

5 Hendrickson v. Beers, 6 Bosw. 639.

6 Julian v. Drill Co., 78 Ind. 408. Zogbaum v. Parker, 66 Barb. 341; 55 N. Y. 120.

› Walters v. Washington Ins. Co., 1 Iowa, 404; 63 Am. Dec. 451; Carter v. Ins. Co., 12 Iowa, 212.

Clarke v. Allen, 11 R. I. 439; 23 Am. Rep. 496.

10 Bamberger v. Kahn, 43 Hun, 411. 11 Hopkins v. Upshur, 20 Tex. 89; 70 Am. Dec. 375.

12 An informal assignment of a judgment insufficient to pass the legal title may yet operate to transfer the equi

table ownership, and enable the assignee, as the real party in interest, to sue upon it: Kelley v. Love, 35 Ind. 106.

13 Freeman on Judgments, sec. 421. The statute of Missouri directing the mode of assigning a judgment is cumulative, and does not prevent an assignment which would be good independently. If a sheriff is duly noti fied of any lawful assignment, he must hold any moneys collected on execution for the assignee: Burgess v. Cave, 52 Mo. 43.

14 Needles v. Needles, 7 Ohio St. 432; 70 Am. Dec. 85; Moody v. Wright, 13 Met. 17; 46 Am. Dec. 706; Mitchell v. Winslow, 2 Story, 630; Thallheimer v. Brinckerhoff, 3 Cow. 623; 15 Am. Dec. 309; Skipper v. Stokes, 42 Ala. 255; 94 Am. Dec. 646; Hassie v. Congregation, 35 Cal. 388.