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to transfer such rights as the nature of the property permits to be transferred; and even tangible choses in action may be effectually assigned as between the parties, without delivery. Therefore where insurance policies were assigned by parol, as security to a creditor, the assignment was not invalidated as a preference, by the fact that the policies were not delivered until later and within four months before the assignor's bankruptcy.43 Statutes, however, have made writing of importance in many jurisdictions.

In some States there have been from an early day statutes permitting the assignee of a bond or non-negotiable note or sometimes of any chose in action to sue in his own name if the assignment is in writing, and such statutes have been copied more recently in other jurisdictions.44 The requirement of a written assignment in such jurisdictions, however, affects only the right of the assignee to sue in his own name. In such States, as well as elsewhere, an oral assignment, for valuable consideration, transfers an equitable right to the assignee which may be enforced in the assignor's name. 45 And in a jurisdiction where by statute the real party in interest is always allowed to sue in his own name, the legal effect of a previous statutory requirement of a written transfer in order to give the assignee a right enforceable at law in his own name, seems done away with. 46 Where by statute an assignment in writing is of importance, a blank indorsement of the tangible evidence of a claim has been held sufficient. In life insurance policies, it is frequently provided that certain formalities must be observed in making an assignment, but such provisions are not generally

43 McDonald v. Daskam, 116 Fed. 276, 53 C. C. A. 554 See also Richardson v. White, 167 Mass. 58, 44 N. E. 1072.

44 Enloe v. Reike, 56 Ala. 500; Hardie v. Mills, 20 Ark. 153; Herring v. First Nat. Bank, 13 Ga. App. 492, 79 S. E. 359; Chadsey Admr. v. Lewis, 6 Ill. 153; Phipps v. Bacon, 183 Mass. 5, 66 N. E. 414; Andrews v. Carr, 26 Miss. 577; Able v. Shields, 7 Mo. 120; Miller v. Paulsell, 8 Mo. 355; Patterson

v. Rabb, 38 S. C. 138, 17 S. E. 463, 19 L. R. A. 831.

45 Gardner v. Mobile, etc., R. Co., 102 Ala. 635, 15 So. 271, 48 Am. St. Rep. 84; Wilson v. Bowden, 26 Ark. 151; Chadsey Admr. v. Lewis, 6 Ill. 153; Rittenhouse v. Myers, 10 Mo. 305.

46 Planters', etc., Ins. Co. v. Tunstall, 72 Ala. 142; Lee v. Wimberly, 102 Ala. 539, 15 So. 444; Weinwick v. Bender, 33 Mo. 80.

47 Small v. Smith, 120 Minn. 118, 139 N. W. 133.

held material to the rights of the assignee against his assignor, or to the rights of rival assignees as against one another. 48 In all jurisdictions of the United States as well as in England, contracts for the sale of an interest in land must be in writing.49 Accordingly, an assignment of a contract right to buy land, since the contract gave the assignor an equitable interest in the land, must be in writing in order to be enforceable between assignor and assignee, 50 and under recording statutes, in order to be binding upon third persons, must be recorded.51 The seventeenth section of the English Statute of Frauds, and corresponding statutes in the various States in America modify the right to assign orally choses in action even though they do not relate to land. How far these statutes affect the validity of a contract between assignor and assignee is elsewhere considered,52 but third persons cannot set up the defence of the statute,53 and there can be no invalidity in an oral power of attorney to enforce a contract for the sale of land or of choses

48 In Herman v. Connecticut Mut. Life Ins. Co., 218 Mass. 181, 105 N. E. 450, 451, the court said: "As between the plaintiff and Somer it is immaterial that the assignment was not written upon or attached to the policy, that no reference to the assignment was written or noted on the policy, or that no notice of it was given to the insurance company, either in the manner required by the fifth clause of the policy or otherwise. Merrill v. New England Mut. Life Ins. Co., 103 Mass. 245, 252, 4 Am. Rep. 548; Hewins v. Baker, 161 Mass. 320, 37 N. E. 441; Atlantic Mutual Life Ins. Co. v. Gannon, 179 Mass. 291, 60 N. E. 933. See also Northwestern Mutual Life Ins. Co. v. Wright, 153 Wis. 252, 140 N. W. 1078; Wood v. Phoenix Life Ins. Co., 22 La. Ann. 617; Manhattan Life Ins. Co. v. Cohen (Tex. Civ. App.), 139 S. W. 51; Howe v. Hagan, 110 N. Y. App. Div. 392, 97 N. Y. S. 86; Cowdrey v. Vandenburgh, 101 U. S. 572, 25 L. Ed. 923; New York Life Ins. Co. v. Dunlevy, 204 Fed. 670; Fortescue v. Barnett, 3 M.

& K. 36. The contrary statements in Palmer v. Merrill, 6 Cush. 282, 52 Am. Dec. 782, have not been followed. James v. Newton, 142 Mass. 366, 378, 8 N. E. 122, 56 Am. Rep. 692; Richardson v. White, 167 Mass. 58, 60, 44 N. E. 1072."

49 See infra, §§ 487 et seq.

50 Smith v. Burnham, 3 Sumn. 435; Dougherty v. Catlett, 129 Ill. 431, 21 N. E. 932; Esslinger v. Pascoe, 129 Ia. 86, 105 N. W. 362, 3 L. R. A. (N. S.) 147; Connor v. Tippett, 57 Miss. 594; Hackett v. Watts, 138 Mo. 502, 40 S. W. 113; Hartwig v. Gordon, 37 Neb. 657, 660, 56 N. W. 324; Wilkie v. Womble, 90 N. C. 254; Bowser v. Cravener, 56 Pa. 132, 140; Whitney v. State Bank, 7 Wis. 620. See also infra, § 491, and as to parol rescission of a contract for the sale of land, ibid., ad fin. But see Nazro v. Long, 179 Mass. 451, 61 N. E. 43.

51 Montague v. Aygarn, 164 Ill. App. 596.

52 See infra, § 521.
53 See infra, § 530.

in action which are within the Statute of Frauds; and such a power is implied in the attempted assignment. The obligor under such a contract, it would seem, therefore, cannot interpose the defence of the Statute of Frauds to a suit brought by the assignee to enforce the contract. If the assignor does not take the objection, no one else can.54 It might be necessary, however, to bring such a suit in the name of the assignor, in spite of modern statutes, permitting an assignee to sue in his

own name.

Intangible choses in action are not within the meaning of "goods and chattels" as these words are used in statutes requiring delivery or record of transfers of goods and chattels by way of security.55

§ 431. Construction of assignment.

In case of doubt, an assignment is construed most strictly against the assignor, 56 and generally the rules ordinarily applicable to the construction of contracts are applied.

Where an attempted assignment is ineffectual because the supposed obligation to which it related did not exist, the assignment will generally be construed as transferring any rights of the assignor relating to the same subject-matter as the supposed obligation.57 But the assignment of rights under a continuing contract does not imply an assignment of rights of action for previous breaches of the contract,58 though transferring a right to all payments becoming due in the future even for work done prior to the assignment.59 Similarly a sale of goods which the seller had previously bought with a warranty does not operate as an assignment of a right of action for

54 See Currier v. Howard, 14 Gray, 511; Bullion v. Campbell, 27 Tex. 653.

55 Young v. Upson, 115 Fed. 192; Re Macauley, 158 Fed. 322; Preston Nat. Bank v. George T. Smith Co., 84 Mich. 364, 47 N. W. 502.

56 Swan v. Warren, 138 Mass. 11. 57 Wetmore v. San Francisco, 44 Cal. 294; McCormick v. District of Columbia, 18 D. C. 534; Oneida Bank v. Ontario Bank, 21 N. Y. 490; cf.

Neugass v. New Orleans, 43 La. Ann. 78, 9 So. 25.

58 Regan Engine Co. v. Pacific Engine Co., 49 Fed. 68, 1 C. C. A. 169; Chicago Cheese Co. v. Fogg, 53 Fed. 72; Love v. VanEvery, 18 Mo. App. 196. See also Mullinax v. Lowry, 140 Mo. App. 42, 124 S. W. 572; Steele v. Brazier, 139 Mo. App. 319, 123 S. W. 477.

59 Chapin v. Pike, 184 Mass. 184, 68 N. E. 42.

damages for breach of the warranty.60 Frequently an assignment in terms absolute is intended to operate merely as security for a debt, and this may be shown by parol.61 Whether a right which it is attempted to assign or a duty which it is attempted to delegate is of so personal a character as to make the attempt unsuccessful, is a question of construction to be determined by the nature of the case and the presumed intention of the parties.62

§ 432. Rights of the assignee against the debtor.

One who has legal title to real estate or to chattel property which he holds subject to an equity, and who transfers his legal title to a bona fide purchaser for value without notice, transfers a title freed from the equity.63 But the assignee of a non-negotiable chose in action, though he buys it for value, and in good faith, takes it subject to all defences which the obligor may have had against the assignor,64 unless the debtor by the form of the instrument intrusted to the assignor or

60 Smith v. Williams, 117 Ga. 782, 45 S. E. 394, 97 Am. St. Rep. 220; Walrus Manufacturing Co. v. McMehen, 39 Okla. 667, 136 Pac. 772; Williston on Sales, § 244.

61 Wing & Bostwick Co. v. United States Fidelity Co., 150 Fed. 672; Carozza v. Boxley, 203 Fed. 673, 122 C. C. A. 69; Despard v. Walbridge, 15 N. Y. 277, 41 N. E. 572; Protzman's Ex. v. Joseph, 65 W. Va. 788, 65 S. E. 461.

62 King v. West Coast Grocery Co., 72 Wash. 132, 72 Pac. 1081.

63 See, e. g., Ames, Legal Essays, 253. 64 Mangles v. Dixon, 3 H. L. C. 702, 731; Phipps v. Lovegrove, L. R. 16 Eq. 80, 88; Stoddart v. Union Trust, Ltd., [1912] 1 K. B. 181, 189, 190; Boatmen's Bank v. Fritzlen, 175 Fed. 183; Smith v. Carder, 33 Ark. 709; Kohn v. Sacramento Elec., etc., Ry., 168 Cal. 1, 141 Pac. 626; Mereness v. Delemos, 91 Conn. 651, 101 Atl. 8; Thurston v. McLellan, 34 App. D. C. 294; York v. Scott, 140 Ill. App. 178;

Rosenthal v. Rambo, 165 Ind. 584, 76 N. E. 404; Cress v. Ivens, 163 Ia. 659, 145 N. W. 325; Sawyer v. Cook, 188 Mass. 163, 166, 74 N. E. 356; Bryne v. Dorey, 221 Mass. 399, 405, 109 N. E. 146; Gamble v. Gates, 97 Mich. 465, 466, 56 N. W. 855; Decker v. Adams, 4 Dutch. 511, 78 Am. Dec. 65; Martindale v. Harris, 26 Ohio St. 379; Gray v. Pelton, 67 Ore. 239, 135 Pac. 755; Egbert v. Kimberly, 146 Pa. 96, 23 Atl. 437; Real Estate Trust Co. v. Riter-Conley Mfg. Co., 223 Pa. 350, 72 Atl. 695; Trimmier v. Valley Falls Mfg. Co., 85 S. Car. 13, 66 S. E. 1055; Ford v. Thompson, 1 Head, 265; Downer v. South Royalton Bank, 39 Vt. 25; Selden v. Williams, 108 Va. 542, 62 S. E. 380. Consequently in case of conflict of laws the law governing the contract between creditor and debtor determines the rights of the creditor's assignee. Northwestern Mut. Life Ins. Co. v. Adams, 155 Wis. 335, 144 N. W. 1108, 52 L. R. A. (N. S.) 275.

otherwise has estopped himself to set up a defence,65 or has given an absolute promise to pay the assignee in substitution for the assigned obligation.66 This principle is applicable not simply to defences like non-performance, fraud, duress, mistake, covenants not to sue, which are applicable to the assigned obligation itself, but also to rights of set-off, or counter-claim arising out of separate matters which the obligor might have asserted against his original creditor, the assignor.67 But if the local law does not permit a set-off of a claim which is not yet due, an assignment of a claim which is due cannot be met by

65 In Ex parte Asiatic Banking Corporation, L. R. 2 Ch. 391, Lord Cairns said: "Generally speaking a chose in action assignable only in equity must be assigned subject to the equities existing between the original parties to the contract; but this is a rule which must yield when it appears from the nature or terms of the contract that it must have been intended to be assignable free from and unaffected by such equities." For cases where the debtor was held estopped, see Webb v. Herne Bay Commissioners, L. R. 5 Q. B. 642; Dickson v. Swansea Vale Ry. Co., L. R. 4 Q. B. 44.

66 Held v. Beach-Robinson Co., 32 Cal. App. 93, 162 Pac. 661.

67 Cavendish v. Geaves, 24 Beav. 163, 174 (but see Stoddart v. Union Trust, Ltd., [1912] 1 K. B. 181); American Steel Barge Co. v. Chesapeake, etc., Coal Agency Co., 115 Fed. 669, 677, 53 C. C. A. 301; Tuscumbia, etc., R. Co. v. Rhodes, 8 Ala. 206; Adams v. Leavens, 20 Conn. 73; Hall v. Hickman, 2 Del. Ch. 318; Guerry v. Perryman, 6 Ga. 119; Gardner v. Risher, 35 Kan. 93, 10 Pac. 584; Adams v. Webster, 25 La. Ann. 117; Hooper v. Brundage, 22 Me. 460; Collins v. Campbell, 97 Me. 23, 28, 53 Atl. 837, 94 Am. St. Rep. 458; McKenna v. Kirkwood, 50 Mich. 544, 15 N. W. 898; Hunt v. Shackleford, 55 Miss. 94; Ford v. O'Donnell, 40 Mo. App. 51; Lewis v. Holdredge, 56 Neb. 379, 76

N. W. 890; Sanborn v. Little, 3 N. H. 539; Wood v. Mayor, 73 N. Y. 556; First Nat. Bank v. Bynum, 84 N. C. 24, 37 Am. Rep. 604; Metzgar v. Metzgar, 1 Rawle, 227; Clement v. Philadelphia, 137 Pa. 328, 334, 20 Atl. 1000, 21 Am. St. Rep. 876; Neal v. Sullivan, 10 Rich. Eq. 276. See also Bryne v. Dorey, 221 Mass. 399, 109 N. E. 146. Cf. Greene v. Darling, 5 Mason, 201. So a particular credit item in a mutual account cannot be separately assigned. Heiliger v. Ritter, 78 N. Y. Misc. 264, 138 N. Y. S. 212. On the other hand a claim acquired after notice of the assignment cannot be set off. See cases supra, also Campbell v. Equitable Life Ass. Soc., 130 Fed. 786. And the debtor, if he had notice of a proposed assignment of a claim against him, and did not inform the person proposing to take the assignment of an existing right of set-off against the assignor, cannot set it up against the assignee. King v. Fowler, 16 Mass. 397. Cases involving the question of the right of the maker of negotiable paper to set off against a transferee after maturity claims against the payee or indorsee though often decided as if depending upon the same principle, should perhaps be distinguished, since even after maturity the legal title to the note is transferable. As to such cases see23 L. R. A. 326, n., 39 L. R. A. (N. S.) 658, n.

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