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circumstances, or the inherent nature of the contract, shows a contrary intention, this intention will prevail. For example, where a number of persons subscribe money to promote a common enterprise they are severally liable although their promises are joint in form. This liability is due to the fact that the inherent nature of the contract is such as shows clearly that the intention of each subscriber was to bind himself individually."

i Davis v. Belford, 70 Mich. 120, 37 N. W. R. 919.

CHAPTER VII

ASSIGNMENT AND DISCHARGE OF CONTRACTS

119. Definition of assignment.-An assignment is a transfer by one party to another of some right, title or interest in personal or real property in which a third party has an interest. The term is often applied to the instrument by which the transfer is effected.

120. Competent parties to an assignment.-Any person who is competent to make a contract can make an assignment. Thus, an agent can make an assignment on behalf of his principal; a partner can make an assignment of a partnership claim; a corporation can make an assignment the same as a natural person; a tenant in common can assign his own interest, but not that of his cotenant without express authority.

The party making the assignment is called the assignor, and the party to whom it is made, the assignee. The assignee can receive the property either in his own right or for the benefit of others.

121. What may be assigned.—Bilateral contracts create rights and also liabilities. The former usually are assignable but not the latter.

Rights which relate to money or property are assignable, while those which relate to personal services involving a relation of personal confidence are not.

At common law choses in action are not, as a rule, assignable. This is owing to the fact that, at common law, the thing assigned must have an actual or potential existence. However, where the debtor assents to the assignment and expressly promises to pay

the assignee, the latter may sue him on his promise.

By statute, both in England and in this country, choses in action are assignable at law the same as choses in possession. Under this statutory law the assignee may sue in his own name, but at common law he must sue in the name of the assignor or his representative.

In equity choses in action are assignable irrespective of statutory law; and courts of equity will protect and enforce such assignments when made bona fide and for a valuable consideration, except where the chose in action relates exclusively to personal services or involves personal credit, trust and confidence.

122. Assignment of liabilities.—Liabilities growing out of a contract are not, ordinarily, assignable. The basis of this rule is public policy and convenience. A party to a contract is entitled to know to whom he is to look for satisfaction and is also entitled “to the benefit which he contemplates from the character, credit and substance of the person with whom he contracts.

There are, however, a few apparent exceptions to the foregoing rule. Thus, a party to a contract may assign his liabilities under it, provided consent of the other party is obtained. This, however, is substantially the making of a new contract. Again, a party may delegate to another the performance of a duty not involving personal skill, but the former party will remain liable in case the duty is not performed according to the terms of the contract. A third apparent exception to the rule is the case of a transfer of land where there are liabilities attached to the enjoyment of the interest conveyed. For example, covenants affecting leasehold and freehold interests, and which are not merely personal, 1 Humble v. Hunter, 12 Q. B. D. 310.

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but which run with the land, pass, by implication, to the assignee.

In some cases rights and liabilities are assignable by operation of law. One illustration of this is the case just given of covenants affecting leasehold and freehold interests in land. Such assignments may also take place in cases of death or bankruptcy of a party to a contract. It is the general rule that when a party to a contract dies his rights and liabilities growing out of the contract pass to his executor or administrator. Exceptions to this rule are those contracts which involve a purely personal loss and those which depend upon the personal skill or services of the deceased. Since an executor or administrator gains no personal benefit growing out of the decedent's contracts he is not personally liable for any loss. He merely acts as the representative of the deceased.

123. Assignment by married women. At common law the marriage of a woman deprived her of most of her property rights, but also relieved her of her liabilities. All of her personal property in possession became her husband's absolutely, and all her choses in action he might reduce into his possession. Thus, claims growing out of her ante-nuptial contracts he had the right to enforce. On the other hand he became liable for her debts contracted before marriage. As regards her real estate he was entitled to the rents and profits during coverture. Under the “Married Woman's Acts,” however, which obtain both in England and in this country, these common-law rules have been quite generally abolished. Under these statutes a married woman retains control of her property, both real and personal, and she remains liable for her ante-nuptial debts. At common law she was incompetent to make

a contract, but under the modern statutes she is competent to make contracts relating to her separate estate, as if she were a feme sole.

124. Assignment of bonds, mortgages, etc.—Bonds are choses in action and not assignable at common law so as to give the assignee the right to sue in his own name. By statute, however, they are assignable; and in equity they are assignable irrespective of any statute. The same rules govern with respect to the assignability of judgments and decrees of courts, contracts of guaranty and insurance policies.

Chattel mortgages are assignable both at law and in equity. The assignment may transfer the legal title to the property mortgaged and all the rights of the mortgagor under the mortgage, or it may transfer only the assignor's equitable interests.

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EXAMPLES

107. A, a general partner, assigns a partnership claim to B. A's copartners are bound.

108. A and B are cotenants of a leasehold estate. A, without B's consent, assigns the lease to C. B is not bound.

109. A and B are partners. Cowes the firm $100. A and B assign this claim to A. C gives A a promissory note for the $100. C's debt to the firm is extinguished.

110. A, the authorized agent of a corporation, assigns a corporate claim to B. The corporation is bound.

111. A contracts to act as clerk for B in his store for one year at $40 a month. Three months later B sells his store to C and assigns to him the contract with A for his services. A may repudiate the assignment.

112. A assigns to B a right of action which she has against C for breach of promise to marry her. B cannot enforce the claim. A right of action accruing from a breach of promise to marry is not assignable, on the ground of public policy.

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