of the agreement, directed the rice to be delivered to C, which was accepted and signed by A. Held, that there was a new contract, which excluded any equities between A and B: Lane v. Winthrop, 1 Bay, 116; 1 Am. Dec. 599. A was the owner of a certificate of indebtedness of the state of New York, which he transferred to B with a written assignment. The transfer was induced by false representations, and the promises of B were not fulfilled. B transferred the certificate to the bank of M., which took it on the faith of the assignment. Held, that the bank was entitled to hold the certificate against A: Moore v. Metropolitan Nat. Bank, 55 N. Y. 41; 14 Am. Rep. 173. § 2665. Liability of Assignor. The assignor of a chose in action impliedly warrants that he has a good title to it. The assignor of a bond impliedly covenants that he has a right to transfer what his assignment purports to pass. There is no implied warranty on the part of the assignor of a bond that the obligee will pay it, or that he will repay the consideration in case the obligee fails. No covenants for title are implied in the assignment of a lease. The assignee may recover from his assignor the costs expended by him in prosecuting an unfounded claim which the assignor had falsely represented to be valid.5 ILLUSTRATIONS.-The mortgagee of premises assigned the mortgage to plaintiff. The premises were afterwards, and after the maturity of the mortgage, conveyed in fee by the mortgagor to the mortgagee, and by him to the defendant. The assignment of the mortgage was not recorded. Held, that plaintiff's lien was not invalidated by failure to have the assignment recorded, and that it was prior to defendant's title: Purdy v. Hun 1 Ledwich v. McKim, 53 N. Y. 307; Stroh v. Hess, 1 Watts & S. 153; Giffert v. West, 33 Wis. 617. 2 Emmerson v. Claywell, 14 B. Mon. 18; 58 Am. Dec. 645; Winstell v. Hehl, 6 Bush, 62. 3 Garretsie v. Van Ness, 2 N. J. L. 20; 2 Am. Dec. 333; Looney v. Pinkston, 1 Over. 384; Whiteman v. Childress, 6 Humph. 303; Lawrence v. Daugherty, 5 Yerg. 453; Jackson ". Crawford, 12 Serg. & R. 165; Robinson v. White, 4 Litt. 238; Walker v. Scott, 2 Nott & McC. 286. On the other hand, in Virginia, it is held that the assignor of a bond is liable to the assignee, if the latter, after using due diligence, fails to recover against the obligor: Mackie v. Davis, 2 Wash. (Va.) 119; 1 Am. Dec. 482. And this ruling has been adhered to in this state: See Goodhall v. Stuart, 2 Hen. & M. 114; Saunders v. Marshall, 4 Hen. & M. 455; Smith v. Triplett, 4 Leigh, 599. Blair v. Rankin, 11 Mo. 440; Waldo v. Hall, 14 Mass. 486. Cartwright v. Carpenter, 7 How. (Miss.) 328; 40 Am. Dec. 66. tington, 42 N. Y. 334; 1 Am. Rep. 532. The vendor of land took two bonds, maturing at different dates, for the unpaid purchase-money. He assigned to plaintiff the bond last falling due. Held, that the assigned bond was entitled to priority of payment, and that want of due diligence on the part of the assignee did not affect such priority: McClintic v. Wise's Administrator, 25 Gratt. 449; 18 Am. Rep. 694. § 2666. Assignment by New Agreement of All Parties. -The assignment of a debt may be rendered effectual in law by an agreement of all the parties that the debtor, in consideration of his discharge by the assignor, should undertake a new contract to pay the assignee.1 So by agreement of all parties the liability for a debt may be assigned from one debtor to another. Such a transaction frequently occurs upon a change in a firm of partners; the debt of the original firm may, by an agreement of all the parties, be effectually transferred to the new firm, so as to render them liable to the creditor in substitution of the former. So where a change in a firm is occasioned by the retirement or death of one of the partners, an assignment of a debt of the original firm may be effected. by the creditor accepting, either expressly or by his continued dealing, the liability of the continuing partners.3 Leake on Contracts, 1185. Mr. Leake says: "Such a transaction is frequently adopted to enable the creditor to pay a debt of his own by means of the debt due to him. The transaction is thus stated in a simple form: Suppose A owes B one hundred pounds, and B owes C one hundred pounds, and the three meet, and it is agreed between them that A shall pay C the one hundred pounds. B's debt is extinguished, and C may recover that sum against A.' In the case supposed, C gives a consideration for the promise of A to him in the satisfaction and discharge of the debt of B, and receives a consideration for his discharge of B in the promise of A; A receives a consideration for his promise to C in the satisfaction and discharge of his debt to B; B receives consideration for the discharge of his debt to A in the satisfaction and discharge of his debt to C; but without agreement and consideration between all the parties, the new contract, in assignment of the debt, would be incomplete. Accordingly, where, in the like relation between the parties, A merely requested C to charge B's debt to him, and C sent in his account to that effect, it was held to be not sufficient evidence of the acceptance of A as debtor instead of B, and B remained liable: Cuxon v. Chadley, 3 Barn. & C. 591. So it was held to be no answer to the claim of B against A that it had been agreed between the parties that A should pay C instead of B, unless it was further shown that the debt of B to C had been discharged ": Cochrane v. Green, 9 Com. B., N. S., 448. Leake on Contracts, 1188. Thompson v. Percival, 5 Barn. & Adol. 925, Lyth v. Ault, 7 Ex. 669. § 2667. Assignee of Chose in Action may Sue in his Own Name.-At common law, an action upon an assigned chose in action was required to be brought in the name of the assignor, unless the debtor had expressly promised the assignee to be responsible to him.' But in those states where choses in action are made assignable, the assignee may maintain in his own name any action thereupon which the original obligee or payee might have brought.2 The Michigan statute allowing the assignee to sue in his own name upon a contract is only permissive in its provisions, and the assignee is still at liberty to sue in the name of the contracting party. Under a general statutory provision that "every action must be prosecuted in the name of the real party in interest," the assignee of a chose in action must bring suit in his own name, even though such chose in action is not assignable at common law. The New Jersey statute authorizing the assignee of a chose in action to sue therefor in his own name after the death of the assignor makes it an essential condition of such right of action that the assignment shall have been for valuable consideration. An assignee of a debt may bring an action for it in the assignor's name, even against his consent and without his knowledge, if such use of his name is necessary to enforce payment of the debt; but on application of the nominal plaintiff, indemnity against costs would be required, and in default thereof, the proceedings might be set aside or stayed. 1 Skinner v. Somes, 14 Mass. 107. The assignees of an account cannot authorize the assignor to bring suit thereon in his own name, while they retain the absolute property in it: Peck v. Dodds, 10 Nev. 204. 21 Stimson's American Statute Law, sec. 4032; Hooker v. Eagle Bank, 30 N. Y. 83; 86 Am. Dec. 351; Peterson v. Chemical Bank, 32 N. Y. 21; 88 Am. Dec. 298; Roberts v. Corbin, 26 Iowa, 315; 96 Am. Dec. 146. Sisson v. R. R. Co., 14 Mich. 489; 90 Am. Dec. 252. Long v. Heinrich, 46 Mo. 603. Andrews v. Rue, 34 N. J. L. 402. 6 Farmers' etc. Bank v. Humphrey, 36 Vt. 554; 86 Am. Dec. 671. |