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Yale Law School Yale Law School Legal Scholarship Repository Faculty Scholarship Series Yale Law School Faculty Scholarship 1-1-1926 Assignment of Contract Rights Arthur Corbin Yale Law School Follow this and additional works at: http://digitalcommons.law.yale.edu/fss_papers Part of the Law Commons Recommended Citation Corbin, Arthur, "Assignment of Contract Rights" (1926). Faculty Scholarship Series. Paper 2858. http://digitalcommons.law.yale.edu/fss_papers/2858 This Article is brought to you for free and open access by the Yale Law School Faculty Scholarship at Yale Law School Legal Scholarship Repository. It has been accepted for inclusion in Faculty Scholarship Series by an authorized administrator of Yale Law School Legal Scholarship Repository. For more information, please contact [email protected]. University of of Pennsylvania Pennsylvania University Law Review Review Law And American American Law Law Register Register And FOUNDED FOUNDED 1852 1852 PublishedMoasthly. Moathly.November NOYClDbertotoJune, JIlIIe,by by the the Univenmty Uninnit)' ofof Pennsylvania Pel1lll11nni.Law LawSchool, School. Published 34thand aDdChestnut CbettnutStreets, Streeb, Philadelphia, Philadelphia,Pa. P•• atat 34th VOL. 74. 74. VOL. JANUARY, 1926. 1926. JANUARY, " 3No. NO·3· ASSIGNMENT OF OF CONTRACT CONTRACT RIGHTS RIGHTS ASSIGNMENT This subject subject has has been been much much discussed discussed under under the the heading heading This "alienability of choses choses in in action." action." In In continuing continuing the the discussion discussion "alienability of our first step step should should be be to abandon abandon altogether altogether the the term tenn "chose "chose in our Its linguistic linguistic construction construction is faulty, in in that that its individual individual action." Its action." that from different something very different from that words lead one to think very something of think to words lead one no is There which the expression as a whole now denotes. denotes. expression which some "chose" or thing or res. There is a right (or (or claim): claim): against against rcs. There "chose" person. In this article we we shall speak speak in terms of rights rights (or (or person. claims) and not about "choses." "choses." claims) It is even more important important that we should cease to use such a phrase as "assignment Whatever definition we contract." Whatever "assignment of contract." choose for the word "contract," "contract," it is not possible to construct accurate rules by the use of such aa phrase. If a contract is defined as consisting of the facts operating to create a binding obligation-offer, acceptance, consideration, etc.-these facts are assignedL be assigned. merely aa part 0off recorded history and surely cannot be If past It is meaningless to speak of assigning a past event. If aa cona speak meaningless It merely we are merely law, we tract at law, enforceable at promise enforceable as aa promise defined as is defined tract is indicating and placing emphasis upon one of the operative facts and indicating operative the of upon emphasis placing and event and past event merely aa past is merely that promise is A promise operative. A fact operative. in fact is in that itit is much promisee; the be said to be assignable by the promisee; much cannot properly by cannot properly be said to be assignable and it, and made it, who made ·less promisor who the promisor by the assigned by be assigned promise be can aa promise less can bilateral to aa bilateral party to either party itit would that either say that to say erroneous to equally erroneous be equally would be deas dedefined is contract botk promises. If contract is defined as contract can assign If promises. both contract can assign (207) (207) HeinOnline -- 74 U. Pa. L. Rev. 207 1925-1926 2o8 208 UNIVERSITY OF OFPENNSYLVANIA PENNSYLVANIA LAW LAW REVIEW REVIEW UNIVERSITY noting the the legal legal relations relations of of the the parties parties created created by by agreement agreement or or noting promise, it is again erroneous to say that the "contract" "contract" can can or or promise, it is again erroneous to say that the cannot be be assigned. assigned. Some Some of of the the legal legal relations relations can can be be assigned assigned cannot and some cannot. The The legal legal relations relations created created by by any any particular particular and some cannot. contract must must be be analyzed analyzed and and the the assignability assignability of of each each one one must must contract be considered separately. be considered separately. The legal legal relations relations created created by by aa contract contract are are in in various various comcomThe binations; they can always always be be analyze4, analyzed, however, however, into into rights, rights, binations; they can powers, privileges, privileges, and and immunities, immunities, each each havings havings its its necessary necessary corcorpowers, relative. The present article will not consider the assignability of relative. The present article will not consider the assignability of powers, privileges privileges or or immunities. immunities. They They may may in in some some cases cases be be powers, assignable. In In the the law law of of agency agency is is to to be be found found the the old old maxim maxim assignable. "delegatwu delegare delegarenon non potest," potest," indicating indicating that the the power power of of an an "delegatus agent is not assignable. We know, however, that this maxim agent is not assignable. We know, that this does not not tell tell the the whole whole story.1 story.' The The most important of the legal legal does relations created created by by contract contract is is the the relation of right and duty. duty. relations The problem problem of of assignment assignment in in connection connection with this relation is th~ the The subject of the present present article; article; and and it it is restricted to rights and dusubject of the ties that that are are created by contract. ties DEFINITION DEFINITION To say say that one person To that one person has a "right" "right" against another means that he has the aid of organized society that he has the aid of organized society in in controlling controlling the conduct cond,!ct of of that that other other person person in in some some respect. respect. Exactly Exactly the the same idea idea. is is expressed expressed when when we we say say that that that that other other person person is under under a legal legal duty to to the the first. first. The The one one who who has has the the right is in the superior superior or or more more advantageous position; the duty bearer is in the advantageous position; the duty bearer in the inferior inferior or or less less advantageous advantageous position. position. A A contract contract may may create create in in the the one one person person rights to more more than than one one performance; performance; also, also, it may may create create rights rights to in in each each of of the the contracting contracting parties parties against against the the other. other. Let Let us us determine determine first first what what' is is meant meant by by the the assignment assignment of of aa right. A simple illustration will be of service. service. right. A simple illustration will be of Let Let us us suppose suppose that that A A has has aa right right that that B B shall shall pay pay him him $ioo. $IOO. It is established law It is established law that that A A has has power power to to assign assign this this right right to to C. C. 'In Barber Agency Co. v. Co-op. Barrel Co., 133 Minn. 207, i58 N. W. 1 In Barber Agency Co. v. Co-op. Barrel Co., 133 Minn. 207, Is8 N. W. 38 (igs6), itit isis said: 38another (1916),powers said: "It "It isis the the universal universal rule rule that that an an agent agent cannot cannot transfer transfer to to another powers calling calling for for the theexercise exercise6f of discretion, discretion, skill, skill, or orjudgment." judgment." HeinOnline -- 74 U. Pa. L. Rev. 208 1925-1926 ASSIGNMENT ASSIGNMENT OF OF CONTRACT CONTRACT RIGHTS RIGHTS is also also established established law law that that the the assignment assignment isis operative operative without without ItIt is duty same the under is B of B. After the assignment B is under the same duty the consent assignment the the consent of B. After place and time as before; before; that that is, is, he he must must still still pay pay $ioo $100 at at the the time and place as specified. The The correlative correlative right, right, however, however, is is no no longer longer in in A; A; it isis specified. C. The The social social assistance assistance formerly formerly at at A's A's command command is now in C. available to to CC and and is not not available available to to A. ' available If the the foregoing foregoing is is correct, correct, an an assignment assignment of of an an existing existing If an act act of the possessor possessor of that that right right which which operates operates to exexright is an right similar an exactly create to and assignor tinguish right of the'assignor and to create an e."<:actl:· similar the of right the tinguish legal operaoperaright in in the the assignee. This This definition definition is in in terms terms of legal right tion--of the the effect of of the assignor's assignor's act act upon.the upon.the action of organtion-of It is not a descriptive descriptive definition definition enabling enabling us to ized society. It ized one. see we when assignment recognize an act assignment when see one. of an act recognize definition as the foregoing renders renders some service, service, but but Such a definition operanot sufficient sufficient standing alone. In order order to predict predict legal legal operait is not recognize the facts that will bring bring it about. tion we must be able to recognize This is true even even though the courts do not start in the beginning beginning rules definite and completed descriptive descriptive definitions definitions of facts with completed of law determining the legal operation of those facts. Perfect Perfect definition and fixed rule are the final goal toward which the courts us, is are striving; they are a goal which, as Judge Cardozo tells us, is 22 may court the case never actually reached. In every decision of a assume a definition. definition and assert a rule; but the facts and decision to the inductive basis used by the next court of that very case add ,to correcting the rule. in remaking remaking the definition and correcting The law does not start with definitions and general rules already crystallized crystallized and put into definite words. Instead, some The events events occur; A acts and B complains thereof to aa court. The court must determine what society will do about it; this is a deterx66: at p. p. 166: especially at passim; especially (92), passim; Process (1921), •'The The Natllre Judicial Process the Jlldicial of the Nature of find how upon the bench, to find first years upon "I in my first much troubled in spirit, in was much "I wa.s certainty. for certainty. had embarked. II sought for which II had trackless ocean on which the ocean was the trackless was was for itit was quest for that the quest TI WdS and disheartened when II found that oppressed and was oppressed and more and as II have reflected more and as by, and futile gone by, have gone years have the years As the futile .. .. •. As become reconciled to the have become more of the the judicial process, II have nature of the nature upon the more upon to grown to as inevitable. II have grown see itit as to see uncertainty, grown to have grown because II have uncertainty, because and creation; and but creation; discovery, but see reaches is not discovery, in its highest reaches the process in that the see that travail the travail of the part of are part fears, ~e and fears, that hopes and the hopes misgivings, the and misgivings, doubts and the doubts that the that principles that which principles in which of death, death, in the pangs of of and the birth and of birth pangs of mind, the pangs of mind, born." are born." have principles are new princip}es and new expire, and day expire, their day served their have served HeinOnline -- 74 U. Pa. L. Rev. 209 1925-1926 210 210 UNIVERSITY OF OF PENNSYLVANIA PENNSYLVANIA LAW LAW REVIEW REVIEW UNIVERSITY mination of of the the legal legal operation. operation.of the particular particular events events by by judijudiof the mination cially operating operating because because of of them. them. No No second second series series of of events events isis cially exactly like like the the first; first; and and even even if if itit were, were, itit could could not not be be predicted predicted exactly would court, same the even or with certainty that a second court, or even the same court, would court, a second that with certainty time of course the In react to the events in the same fashion. In the course of time react to the events in the same fashion. there are are many many series series of of events events with with many many adjudications adjudications thereon. thereon. there By using using the the multitude multitude of of records records aa jurist jurist or or legal legal scholar scholar can can By make rules rules and and definitions. definitions. He He classifies classifies the the judicial judicial and and execuexecumake tive reactions reactions of of society society (the (the legal legal operation) operation) and and the the facts facts that that tive determine can caused these these reactions. reactions. By careful careful analysis analysis he he can determine the the caused legal operation operation that certain certain facts will will produce produce and and can can specify specify the the legal will produce produce the operation. operation. Thus Thus be be creates creates stated stated facts that will rules of of societal societal action action and defines defines facts with with reference reference to that that rules action. His chief chief if not only only interest interest is is to determine determine what the the not is He it. legal operation operation will will be, what society society will will do about about not legal writing a general general natural natural history history or preparing preparing a descriptive descriptive writing "movie" of the "movie" of the world. world. If If his his work work is well done, however, he will discover discover the essentials essentials in similar similar series series of events, and will dethat produce facts scribe in photographic fashion the produce a certain photographic fashion scribe legal effect. .the term assignment? Shall describe an assignment? Shall.the How, then, shall we describe include all the facts necessary to produce the legal efbe used to include (the substitution of right in fect stated in the foregoing definition (the assignor) J or shall it be restricted to the assignee in place of the assignor), some one or aa few of those facts? This depends solely on usage "usage" and convenience; convenience; but it is no easy task to determine what "usage" A statement of the rules of is or what "convenience" "convenience" requires. A accurate enumeration of the facts that law will require aa full and accurate fact so enumerated must be result, and each fact produce any juristic result, definition at aa descriptive definition attempt at and described. An attempt identified and follows. follows. assignor the assignor by the intention by of intention is an an expression of As assignment is As s assignee." to shall to the assignee. that his right shall pass that his or analysis of act or fine analysis any fine into any going into without going definition, without This definition, This of conduct conduct bit of certain bit "assignment" to aa certain term "assigtirnent" intent, dedicates the term dedicates the Samuel to Professor Professor Samuel indebted to writer isis indebted the writer definition the of definition form of this form •'For For this Will;slon. Will;sion. HeinOnline -- 74 U. Pa. L. Rev. 210 1925-1926 ASSIGNMENT OF OF CONTRACT CONTRACT RIGHTS RIGHTS ASSIGNMENT 21I by the the assignor, assignor, the the objective objective expression expression of of an an intention intention to to subsubby might be be criticised criticised because because itit tells tells stituteaa new new right-holder. right-holder. ItIt might stitute us absolutely absolutely nothing nothingabout about the thelegal legal operation operation of of this thisexpression expression us of the the assignor, assignor, since since courts courts and and lawyers lawyers are are interested interested in in facts facts of presthe for only with with respect respect to to their their legal legal operation operation (excluding (excluding for the presonly ent "evidential" "evidential" facts). facts). But But ititisis not not convenient convenient to to include include irin the the ent aa of substitution the produce to to produce the substitution of definition all the facts necessary necessary facts the all definition will facts of combination one new right-holder, because more than one combination of facts will than new right-holder, because more produce that that result. result. "The "The law" law" cannot cannot be be compressed compressed into into aa defidefiproduce nition. ItIt isis convenient convenient to to pick pick out out the the central central fact fact common common to to all all nition. then and above, definition such combinations, describe it as in the the definition above, and then in as it describe such combinations, to proceed proceed to to state state what what other other facts facts in in combination combination with with this this one one to will produce produce the the substitution substitution mentioned. mentioned. will In order order that that an an expression expression of of an an intention mtention by an an assignor assignor In must there assignee, the in may be operative substitute in assignee, there must right a substitute to may be operative expression the and existing right right that that can be be assigned, and the expression of of be an existing intention by the the assignor assignor must be in in a mode mode that has been been adjuintention Several modes have been held effective; effective; dicated to be effective. Several but we we cannot say say with assurance assurance that other other modes modes will not be .so held. An assignment is operative operative if the assignor's expression expression. of is accompanied accompanied by a consideration consideration paid; if it consists the deliv"document of title" (a docuery, along with words of gift, of a "document ment executed by the debtor acknowledging acknowledging his duty and describif the assignor's intention is exing the performance. performance, due); or if pressed by aa written and delivered delivered documentary assignment courts the courts for the (sealed strong tendency for unsealed). There is a strong or unsealed). (sealed or intent to give legal operation to any oral expression of present intent to oral any give recogbe that facts of assign. An exact determination of the facts that will be recogassign. article; present article; in the present nized be undertaken in not be will not operative will as operative nized as assign promise to assign and a promise but assignment and between an assignment but aa distinction between will be briefly noted. noted. will be briefly ASSIGNMENT AN AsSIGNMENT PROMISES MAKE AN TO MAKE PROMISES TO suffor aa sufpromise for makes aa promise right makes If contract right of aa contract holder of the holder If the operalegal the is what is the legal operaanother, what ficient toanother, assign ititto toassign consideration to ficient consideration promise isis aa such aa promise question such tion Beyond question transaction? Beyond the transaction? of the tion of assignment the assignment to the impediment to valid legal imp"ediment no legal there isis no contract ifif there valid contract HeinOnline -- 74 U. Pa. L. Rev. 211 1925-1926 212 212 UNIVERSITY OF OFPENNSYLVANIA PENNSYLVANIA LAW LAW REVIEW UNIVERSITY of such a.a right as that involved. involved. There would would be be aa legally legally enenof forceable duty duty to to the the promisee to to perform in in accordance with the forceable the as in the the case case of any other other contract. 44 But how how does does such such promise as a promise to assign affect the legal relations of of the the obligor (the to assign affect the legal a (the to the assignor and and the assignee? assignee? It is quite impossible impossible debtor) to to answer this question in in one general statement, because the term to assign" has several distinct meanings. "promise to assign" has been held to be be In some cases the "promise to assign" has itself a completed assignment, extinguishing the right of the asasitself" signor against the debtor and creating aa similar right in the promisee. In such cases the "promise "promise to assign" is self-executing self-executing and "promisee" in in fact an assignee. Such a holding is quite makes the "promisee" "promise to correct if the words and conduct accompanying the "promise assign" express an intention to convey the right immediately. assign" express an intention That the assignor's assignor's words are in promissory form is not concluThat the sive to the contrary. It is clear that such an intention may exist exist sive to the contrary. and may be expressed, even though the parties contemplate contemplate the subsequent execution of a documentary documentary assignment. In such case subsequent the document is to be a mere memorial of an already operative a the transaction and is not operative assignment. 5II transaction itself to be the operative On the other hand a promise that the promisor will on his own behalf collect collect the money due him and thereafter pay that specific money over to the promisee is not an assignment.86 The 'Hughes (1912). 4 Hughes v. Burwell, Burwell, 113 II3 Va. 598, 75 S. S. E. 230 (1912). • Where for a valuable consideration consideration a promise promise was made to assign certain insurance policies, it it has been held that a subsequent subsequent formal assignment assignment tain insurance policies, of of the policies policies was not in fraud of creditors or an illegal preference, preference, since since the the: assignee's assignee's right right really dated dated from the time of the promise: promise: In re Grandy, 146 Fed. 318 (19o6), (formal assignment delayed 146 (1906), (formal delayed because insurance company company required required certain certain forms); Wilder v. Watts, 138 Fed. 426 426 (i9o5), (1905), (here (here the promise was to insure promise was to insure certain property property and to assign assign the policy policy so obtained). obtained). See See also also McDonald McDonald v. Daskam, z16 II6 Fed. 276 (9o2); (1902); In re Dier, Dier, 296 296 Fed. 816 816 (924), (here (1924), (here a delivery delivery of stock certificates certificates was was not an an illegal illegal preference, preference, because because in consideration consideration of a loan loan the the borrower had promised promised to incorporate mcorporate and and to to assign assign the the stock to the lender). lender). 'Carey 197 Iowa 1239, 175 175 N. • Carey v. v. Chase, Chase, 197 Iowa 1239, N. W. W. 6o 60 (xgig), (1919), (promise (promise by by aa surety certain company company she would apply apply surety that whatever whatever she she might might get from a certain in in payment payment of that company's company's debt to the plaintiff); plaintiff); Stock Growers Growers Bank Bank v. 1925), (promise v. Milisich, Milisich, 233 Pac. Pac. 41 41 (Nev. (Nev. 1925), (promise to to a lender lender to to repay repay out out of of a third third person's person's notes notes held held by the the promisor) promisor);; Patterson Patterson v. v. Bank, Bank, 236 S. S. W. W. 13o 130 (Tex., (Tex., 1922), 1922), (promise (promise to to pay pay a debt debt with with proceeds proceeds of of sale sale of crops) crops) ; Hobbs Hobbs v. out of v. McLean, McLean, 117 II7 U. U. S. S. 567 567 (1885), (1885), (a (a promise promise to to pay payout of moneys moneys to be be received received on on a contract contract with with the United United States States is is not not within the federal federal statutory regulation assignments). . regulation of assignments). HeinOnline -- 74 U. Pa. L. Rev. 212 1925-1926 ASSIGNMENT OF OF CONTRACT CONTRACT RIGHTS RIGHTS ASSIGNMENT 2 13 promisor's right right against against the the debtor debtor isis not not thereby thereby extinguished, extinguished, promisor's nor isis aa right right against against the the debtor debtor created created in in the the promisee. promisee. Such Such aa nor out of to collect collect and and to to pay payout of the the proceeds. proceeds. promise isis aa promise promise to promise Words of of present present assignment, assignment, however, however, are are not not made made inoperative inoperative Words as aa present present assignment assignment by by the the fact fact that that the the assignor assignor at at the the same same as to collect collectthe the money money due due as as an an agent agent of of the the assignee assignee time promises promisesto time and to to pay pay itit over over to to him.r him. 7 and For an an effective effective assignment assignment itit isis necessary necessary that that the the right right asasFor 8 8 acbook A promise promise to to assign assign book acsigned shall shall be be clearly clearly identified. identified. A signed is not not operative operative as as aa present present assignment assignment ifif the the counts as as security security is counts accounts are are not not clearly clearly indicated indicated and and the the terms terms of of the the assignassignaccounts are left left to to future future agreement agreement or or if if the the parties parties understand understand ment are ment accounts the that the the promisor promisor is is to to be be privileged privileged to to collect collect the accounts and and use use that 9 In such such aa case case there there is is great great probprobthe money money in in his his own affairs. affairs. In the that the agreement agreement is is too too uncertain uncertain in in subject subject matter matter or or ability that ability promthe between contract valid a terms to be regarded even as contract between the promeven terms to be regarded the promisee. promi~ee. isor and the AsSIGNEE NOT AN AN AGENT AGENT OR ATTORNEY ASSIGNEE It was once once believed believed that a right could could not be assigned. assigned. A "right" was conceived of as a sort of nebulous, ethereal, personal "right" was conceived of as a sort of personal 110 0 In the nature nat1lre of things it could not be assigned. This relation. A proceeds of the litipromise to pay an attorney compensation out of the proceeds A promise gatIOn because it creates only a right in the attorney assignment, because gation is not an assignm.ent, against the create aa right in the attorney against the party client and does not create the client against ; Trist (9) 69o (1902); E. 690 Ill. 84, 65 N. E. who is being sued: Cameron v. Boeger, 200 I11. who v. 1874). S., 1874). (U. S., v. Child, 21 Wall. 441 (U. (19o6). At. 973 (1906). 64 Atl. 8o9, 64 Eq. 8og, •'Cogan Cogan v. Conover Mfg. Co., 69 N. J. Eq. Mfg. Co., •'Thus, Thus, aa promise by aa mortgagor to keep the property insured for the mortgagor though the mortgagor even though benefit mortgagee is not an assignment, even the mortgagee of the benefit of was There was in his own name. There shouid executed in cause aa policy to be executed thereafter cause should thereafter Quincy Stearns v. Quincy no and identified right. Steams some designated and to assign some promise to no promise Ins. (1878). 6I (1878). 124 Mass. 61 Co., 124 Ins. Co., 148. 209 Fed. 148. •"In In re (913), 209 791 (1913), Fed. 791 2o2 Fed. re Stiger, 202 explained "is better explained assignable "is 1."The The rule not assignable was not action" was "chose in action" that aa "chose rule that creating aa as creating contract as as of aa contract view of archaic view the archaic consequence of the logical consequence as aa logical 278. i9o6) 278. (Williston's ed., 1906) strictly CoNTRAcTs (Williston's POLLOcK, CONTRACTS obligation." POllOCK, personal obligation." strictly personal assigned ...... be assignea cannot be things cannot of things "A nature of very nature the very in the relation in personal relation "A personal capable is capable that is nothing that is nothing there is where another, there against another, right against mere right has aa mere one has where one ON LEcruas ON in LECTURES Action, in in Action, of Choses in of Choses Inalienability of The blalie/lability Ames, The transfer." Ames, of transfer." defining subconsciously defining been subconsciously LEGAl. have been to have seems to Ames seems Dean Ames 210. Dean HISTORY, 210. LEGM. HISTORY, deAs dematter. As subject matter. of subject sort of "assIgnment" some sort of some tradition of physical tradition as aa physical "assignment" as case the case in the as in just as create, just to create, fined and to extinguish and to extinguish operation isis to its operation herein, its fined herein, no right isis no contract right of chattels-. AA contract or cpattels-. land or in land property in of property conveyance of any conveyance of ailY HeinOnline -- 74 U. Pa. L. Rev. 213 1925-1926 214 214 UNIVERSITY OF OFPENNSYLVANIA PENNSYLVANIA LAW LAWREVIEW REVI4W UNIVERSITY supposed difficulty difficulty isis entirely entirely eliminated eliminated by by aa closer closer analysis analysis of of supposed the in as Just "relation." by "right" and "relation." Just as in the the concepts expressed and the concepts expressed by "right" scienceof ofphysics, physics, such such an an analysis analysis shows showsthat thatthe the ethereaf ethereal'nebula nebula science has substance substance perceivable perceivable by bythe thesenses. senses. has In the the simple simple illustration illustration given given above, above, AA had had aa right right that that BB In nothing mean to analyzed should pay him $100. This is now analyzed to mean nothing now should pay him $ioo. This is more than than that that the the agents agents of of organized organized society society will will assist assist A A in in more or compelling compelling BB to to pay pay over over certain certain money. money. There There are are inducing or inducing various modes modes in in which which this this societal societal assistance assistance isis given. given. It It is is this this various "relation" legal the of societal ~sistance that constitutes the legal "relation" great fact constitutes that assistance great fact of societal of "right" "right" and and "duty." "duty." While While jurists jurists were were for for some some centuries centuries of as be assigned, assigned, they they were were as judges judges saying that that aa right right cbuld could not not be saying going steadily steadily on on transferring transferring their their societal societal assistance assistance from from the the going apaction court this make assignor to the In order make this court action to order In assignee. the to assignor pear to to be be consistent consistent with their their theory theory that that a right right cannot cannot be be asaspear assignor, the in signed, the jurists jurists said said that the the "right" "right" was was still still assignor, signed, that he he had had given given to the assignee a power power of of attorney attorney to to but that but B that right his C to enforce it for A right B assigned having him. for enforce right a had C thereafter when whether thereafter right should pay $100, asked $xoo, against B the jurists said "no"; but when when asked whether whether A could could control the suit against B or could give B a valid valid discharge they also said "no"; 11 11 and when asked whether C could control the suit and could give a valid discharge they said "yes"; and when suit asked by the executing sheriff to whom he should pay the money asked collected, they said "pay C." "pay it to c." compulsion against B, is C In In invoking judicial or executive compulsion As12 Asfor A? 12 (the assignee) acting as the agent or attorney for agent the acting (the assignee) A either of the of either A or suredly not. Such an idea never enters the head enters idea never suredly not. Such make to intention C, expressing an intention to make not aa word expressing centuries not for centuries C, and for assignment. An in assignment. ·cC the agent used in or used required or has been required of A has agent of Professor See Professor right. See different horse right. or aa horse right or land right from aa land respect from this respect in this different in 816 Rsv. 816 L. REv. HAnv. L. 29 HARV. Action, 29 i Actioll, Walter ChoSes ill of Choses Alienability of The Alienability Cook, The W. Cook, Walter W. (1915). (19W5). Bos. Legh, I i Bos. Legh v.v. Legh, 1816);: Legh S., 1816) (U. S., U"Welch Welch v.v. Mandeville, 233 (U. Wheat. 233 Mandeville, I i Wheat. &&P·447 . (x799). P. 447 (1799). perhas perand itit has times; and early times; in early accepted in fiction accepted U"This This was particular fiction the particular was the stated here stated view here The view time. The present time. the present to the ~istcd even to extent even considerable extent to aa considerable qisted to 1o. note 10. cit., note loc.cit., Cook, loco Professor Cook, by Professor analysis by isis prel'ented careful analysis with careful presented with HeinOnline -- 74 U. Pa. L. Rev. 214 1925-1926 ASSIGNMENT OF OF CONTRACT CONTRACTRIGHTS RIGHTS ASSIGNMENT 215 :U5 agent isis one onewho who isisacting actingininhis his principal's principal's behalf; behalf; CC isisacting acting agent the of interest the of prin.solely solely for for his his own own interest. interest. Because Because of the interest of the printooccupy occupy aa fiduciary fiduciary cipal that that isis being being served, served, an an agent agent isissaid said to cipal to the the principal principal connoted connotedby bythe the word word relationand andto to owe owe duties dutiesto relation no has A C, to assignment to C, A has no "fiduciary." After an unconditional,assigmnent unconditional an "fiduciary." After intehlded not are relations be served, served, A's A's jural jural relations are not intended further interest interest to to be further tobe beaffected affectedby byC's C'saction, action, and and CCowes owesno no fiduciary fiduciary duties duties to to A. A. to In some some jurisdictions jurisdictions itit may may still still be be proper proper for for CC to to bring bring In Nsname; name; but but this thisin in no no way way affects affects what whatisis stated stated above."' above. 18 suitin in A's suit in sue to C for necessary is If there are still cases where it it is necessary for C to sue in A's A's If there are still cases where former the in was name, this this isis aa mere mere empty empty formality, formality, as as itit long long was in the former name, of common common law. law. courts of courts It isis no no longer longer even even "proper" "proper" to to sue sue in in the the name name of of A A in in It real "the of name the in be states where where by by statute statute the the suit suit must must be in the name of "the real states party in in interest." On On proof proof that that the the right right has been been assigned, assigned, the the party the as suing is A that dismissed unless it shown shown that A suing the suit will is it unless dismissed be will suit agent and attQrney attQrney of the assignee C and and that that C is the real real plainplainagent 1U ' So assignor, the of agent the So far from the assignee being the agent of the tiff. being tiff. it now now appears appears that that the assignor assignor can can sue only only as as the agent agent of the If the "assignee" attorney or assignee. If "assignee" merely holds a power of attorney assignee. to the proceeds is an assignee for collection remission of proceeds and collection is an the name whose in interest" in the. assignor, he is not the "real "real party interest" 15 suit must, under many statutes, be brought. lIS suit must, assignor's in the assignor's sue in still sue may still JlI It assignee may the assignee Connecticut the appears that in Connecticut It appears same the same from counterclaiming in the name defendant from the defendant thereby prevent the and thereby name and plaintiff. the real plaintiff. acUOI1 against the assignee, the·real has against he has which he on a separate claim which action 011 obbe obshould be It should (907). Atl. 514 (1907). 166 AtL Lowndes It 693, 166 Codln. 693, 79 Colin. Bank, 79 City Bank, v. City Lowndes v. enforcing agent enforcing is a mere agent served the assignee is.a that the this isis not aa holding that served that this addian addiassignee an the assignee gives to the that itit gives the effect isis that Its effect assignor. Its the assignor. of the right of the right which to which one to and one have and not have would not he would tioaal States he other States in other that in one that advantage, one tional advantage, him. entitle him. not entitle the would not justice would of justice notions of conmon notions the COIijD1OI1 v. Whiting v. (192);j Whiting 5o3 (1921) E. 503 N. E. 33 N. 503, 133 JI Y. 503, X. Y. 231 N. Simon, ~31 v. Simon, Parker v. U Parker 113 Col., II3 of CoL, Dist. of v. Dist. Looney v. (1g6);j Looney Gliss, xo82 (1916) E. 1082 N. E. I N. 333, III Y. 333, N. Y. 217 N. Gliss, ~17 U. (88s). 2s8 (I88S). S.~s8 U. S. Crum (1924) j ; Crum 479 (1924) E. 479 N. E. 144 N. 479, 144 Y. 479, N. Y. sa Spencer 237 N. Corp., ~37 Standard Corp., v. Standard Spencer v. (1898). 8s (18gB). v. W. 85 N. W. 7s N. 351, 7S Neb. 351, 55 Neb, Stanley, SS v. Stanley, attoror attoragent or mere agent conversely, aa mere attorney;j conversely, An or attorney agent or an agent not an assignee i.is not An as.ignee and collect and to collect agent isis to the agent that the ney expressed that clearly expressed If ititisis clearly assignee. If an·assignee. not an ney isisnot the before the assignment before no assignment there isis no isis by assignment, there an assignment, effect an to effect collecion to juck colketitm by .stICh 144 Y. 477, 144 N. Y.477, 238 N. Winthrop, 238 Co. v.v. Winthrop, T. Co. L.&&T. act Farmers' L. See Fanners' collection. See of collection. act of N. (x924). 686 (1924). N. E.E.686 HeinOnline -- 74 U. Pa. L. Rev. 215 1925-1926 216 216 UNIVERSITY OF OF PENNSYLVANIA PENNSYLVANIA LAW LAW REVIEW REVIEW UNIVERSITY ASSIGNMENT OF DUTIES DUTIES ASSIGNMENT to detennine determine what rights are assignable Before proceeding to of the assignment and what are not assignable, the easier problem of of duties will be disposed of. of. This disposal disposal consists of the flat statement that no duty can ever be effectively assigned, if we adstatement here to our description of an assignment as a unilateral expression of the assignor. Applying that definition to duties instead of expression of intention by rights, we have: An assignment is an expression the assignor that his duty shall immediately immediately pass to the assignee. to·the Many a debtor wishes that by such an expression he could get rid of his debts. Any debtor can express such an intention, but it is not operative to produce such a hoped-for result. It does not cause society society to relax its compulsion against him and direct it toward the assignee as his substitute. In spite of such an "assignment," the debtor's duty remains absolutely unchanged. The signment," performance perfonnance required by a duty can often be delegated; but by 16 such a delegation the duty itself is not escaped.16 Suppose the following cases: i. A is under contract with B I. A compensation a ton of coal to B's house. A A emto deliver for compensation ploys C to deliver it for him. By so doing A A is not a repudiator 'epudiator contractual duty. If of his contract; but he is still bound by the contractual C delivers the coal, A has a right to payment of the compensation by B. If C does not deliver the coal, B has a right to damages against A for breach of duty. C's failure to deliver the coal damages against C. may also give give to both A and B a right to damages This depends on whether This whether C made a valid contract contract with with A; if he 7 did, A can sue for its breach, ' and nearly everywhere breach,17 everywhere B can sue C as an obligee-beneficiary obligee-beneficiary of his contract with A. U "It has been uniformly that aa man man cannot assign his .. "It has been uniformly held held that cannot assign his liabilities liabilities under under a contract, but one who is bound so as a contract, but one who is bound so as to to bear bear an unescapable liability liability may delegate the performance of his obligation to another, if the liability be be of delegate the performance such a nature nature that its performance performance by another will be substantially substantially the same thing as as performance performance by thing by the promisor promisor himself. In such circumstances the performance of the third party is the act of the promisor, who who remains liable performance under the contract and answerable performance be not in answerable in damages damages if the performance strict fulfillment of of the Crane Ice strict fulfillment the contract." contract." Crane Ice Cream Cream Co. v. Terminal Freezing Co., 128 128 At. (Md. 1925). i925). In "liability" means AU. 280, 280, 283 283 (Md. In the the foregoing, "liability" means legal ing Co., . duty. ~~ "Explosive Chemical Co. v. Gray & Co., 2o7 N. Y. Y. Supp. Supp. 638, 1f Explosive Chemical Co. v. Gray & !Co., 20'/ N. 638, 124 124 Misc. Mise. 333 333 (1g25). (1925)· . HeinOnline -- 74 U. Pa. L. Rev. 216 1925-1926 ASSIGNMENT ASSIGNMENT OF OF CONTRACT CONTRACT RIGHTS RIGHTS 217 2. A A isis under under contract contract with with BB to to play play the the part part of of Hamlet Hamlet inin 2. B's theater. theater. In In B's B's absence, absence, AA employs employs CC to to play play Hamlet Hamlet and and CC B's comagreed the to right no has A In this case A has no right to the agreed comactually does so. case this In actually does so. A from and instead instead BB has has aa right right to to damages damages from A for for pensation; and pensation; breach of of contract. contract. No No more more than than in in the the first first case case could could A A esesbreach C; but but in in addition, addition, A A cape his his duty duty by by such such an an arrangement arrangement with with C; cape first the in do did and could he as he could and did do in the first could not perform vicariously as vicariously could not perform case. case. 'be escaped escaped by by assignment assignment or or delegation; delegation; A duty duty can can never never -be A but any any duty duty can can be be extinguished extinguished by by performance. performance. Some Some duties duties but In not. do others person; do not. In require a performance by a specific person; others specific a by require a performance coal of delivery the was required the coal coal case, case, the the performance performance required was the delivery of coal the at B's house, house, and and itit made made no no difference difference whether whether by by team team or or by by at or by by whom whom driven. driven. In In the the Hamlet Hamlet case, case, the performance performance truck or truck involving the the co-ordinaco-ordinarequired was was the physical physical acting acting of A, involving required of A's A's trained trained body body and brain. Whether Whether or or not a contractual contractual tion of requires personal personal performance performance by a specific specific individual individual can can be duty requires determined only by interpreting interpreting the the words words used used in the light of exdetermined many cases there will be ample room for a differperience. In many But whether the performance performance required required is a perence of opinion. But sonal performance performance or not, the legal duty is not escaped by an assignment or delegation delegation of performance.' performance. IS8 It is easy to put striking cases where the performance required is not solely the personal action of the contractor. A contracts with B that C'will C will not expose a trade secret or that D will play Hamlet. Here A A can neither escape his duty by assignment, by duty by delegate performance new person, nor satisfy his duty performance to ,a new C nor D under performing himself. The The contract puts neither C the by the be satisfied only by A can be of A any duty whatever; the duty of but the whatever; but of D. silence of and the acting of of C and proposition the proposition state the they state when they mean when books mean the books all the is all ordinarily is , S"This .. "This ordinarily that assigned; that be assigned; cannot be in imposing liability cannot contract imposing terms--that aa contract general terms-that in general from assignor from the assignor relieve the rule, relieve as aa rule, the not, as does not, contract does such aa contract of such assignment of the assi~ent C. N. C. 147 N. Co., 147 C. Co., N. C. & N. Atlantic & v. Atlantic responsibility." Co. v. R. Co. C. R. N. C. & N. Atlantic & responsibility." Atlantic (i08). 185 (I~). F. ISS 368, S. E. 61 S. 368, 61 and special and not special obligations not involving obligations "What -contracts involving that-contracts not that is, not meant is, "What isis meant oblian obliof an burden of the burden shifting the of shifting personal sense of full sense the full in the assigned in be assigned can be personal can and special and it isis special when it than when more than gation any more contractor, any substituted contractor, to aa substituted on to gation on another of another act of the act on the rely on may rely assignor may personal; the assignor case the first case the first in the that in but that personal; but Tolhurst cannot." Tolhurst he cannot." case he second case as the second in the whereas in himself, whereas by himself, performance by as performance 669. -66o, 669. v.v.Associated B. 660, K. B. [i9o2] 22 K. Mfrs., [1902] Associated Mfrs., HeinOnline -- 74 U. Pa. L. Rev. 217 1925-1926 218 218 UNIVERSITY OF OFPENNSYLVANIA PENNSYLVANIA LAW LAW REVIEW REVIEW UNIVERSITY is impossible impossible for for A A to to assign assign his his duty, duty, how how can can he he get get IIff itit is rid of it? Only by by some some one one of of the the recognized recognized methods methods by by which which rid of it? Only contractual duty duty isis discharged. discharged. Most Most of of these these require require the aa contractual the asassent of the obligee, the party having the right correlative to the sent of the obligee, the party having the right correlative to the duty to to be be discharged. discharged. One One of of these these methods methods isis called called "nova"novaduty tion," by which, with the obligee's assent, substitution of of debtors debtors tion," by which, with the obligee's assent, aa substitution is effected. effected. This This is is not not assignment. assignment. is WHAT RIGlITS RIGHTS ARE ARE ASSIGNABLE ASSIGNABLE WHAT It is is almost almost safe to say say that all contract contract rights rights are assignable It -almost but but not not quite. quite. Weare We are far far removed from from the notion notion -almost that all rights are strictly personal and therefore not assignable; that all rights are strictly personal and not assignable; but itit is is still still often often said said that some rights are so so personal in charbut acter as as to to be be non-assignable. non-assignable. It It is is believed that this latter limiacter tation on on assignability assignability has has no more foundation than the earlier tation and more general one. one. Let us consider few specific specific cases. I. I. A contracts contracts with B Let us consider aa few to act as B's valet. Surely, it it will will be be said, B's right is so personal to act as B's valet. Surely, that it it cannot cannot be be assigned. But no, the contrary is believed to be that correct although no decision decision pro or con has been seen by the correct although no writer. By this statement writer. By this statement it is not meant to say that the character of of the the service can in in any way be changed service can changed by assignment. acter The right of B B is is that that A act as The right of A shall shall act as B's B's valet, not that A shall act as valet for for whom as valet whom it it may concern. Anyone ought to know act that serving as valet to a miserly, old curmudgeon cross, ill, ill, nUserly, curmudgeon is not not that serving as valet to a cross, the same performance as the same performance serving a healthy, happy-go-lucky, happy-go-lucky, generous, erous, young young prince. prince. Therefore, Therefore, when when B assigns his right against against A, he must assign it as it is. He cannot by assignment to A, he must assign it as it is. He cannot by assignment C crecreate in C C aa right right that that A A shall shall act act as as C's C's valet. That would would be a ate in different to aa different different performance. performance. But B can can assign assign to different right right to C the valet; and and if if A A shall commit commit C the right right that that A A shall shall serve serve as as B's valet; aa breach it will be C who gets the damages measured by the value breach it will, be C who gets the damages measured by the value 19 of of the the promised promised service. service. 19 " ".. .This, This, of of course, course, isis oil 011 the the assumption assumption that that BB made made itit clear clear by by his his words words of no of assignment assignment that that he he was was no longer longer to to be be regarded regarded as as the the possessor possessor of of aa right right against against A, A, either either to to performance performance or or to to damages--that damages-that aa true true assignment assignment by by sustitution was intended. intended. substitution of of aa new new beneficial beneficial right-holder right-holder was HeinOnline -- 74 U. Pa. L. Rev. 218 1925-1926 ASSIGNMENTOF OF CONTRACT CONTRACT RIGHTS RIGHTS ASSIGNMENT 2 19 SUppose that that AA contracts contracts with with BB to to supply supply all all the the coal coal 2.2. Suppose the all or conducting then is B that that B may need in a business that B is then conducting or all the business a in that B may need case the in as Just use. of coalthat thatBBmay mayneed needininhis hishousehold household use. Just as in the caseof coal thevalet, valet,B's B's right rightisis assignable assignable;20 ;20 but butBB cannot cannotby by assignment assignmenttoto the create in in CC aa right right that that AA shall shall supply supply all all the the coal coal that that CC may may CC create though even true is This or his household. This is true even though need in his business household. his or need in his business at the the time timeof of the the attempted attemptedassignment assignment BB sells sells his his business business or or his his at business a of needs The needs of a business or or house to to CC and and CC continues continues therein. therein. The house business same the of those with a house run by C are not identical with those of the same business identical not are C by run a house or house house run run by by B. B. B's B'g power power of of assignment, assignment, therefore, therefore, is is limlimor possessed, B that right same ited to the creation in C of the very same right that B possessed, ited to the creation in C of the very namely, the the right right that that B's B's needs needs shall shall be be supplied. supplied. namely, Of course, course, it it is is possible possible for A A to to contract contract with with B B so so as as to to Of cera supply shall or person give B a right that A shall valet any person or shall supply a cerany valet shall A right that give tain house house with with coal coal without without regard regard to to its its occupant. occupant. This This right, right, tain asafter like the the previous previous ones, ones, can can be be assigned, assigned, the the performance performance after aslike 21 assignment. 21 before as signment remaining remaining exactly exactly the same same before assignment. signment To show show that that the decision in the the foregoing cases cases is not fanthat-his wishes C 3. cases. us consider two more that· his son son ciful let ciful C right. legal a B shall shall have a valet, but not that B shall shall have have therefore contracts with A that A shall serve B as valet, and also therefore secondary right to the value that the primary legal right and the secondary one would doubt that this No of the services shall be in C alone. Noone of is a valid contract, th~t that C has aa right that A shall serve B as valet, of the services in case of breach or that C the value of C has a right to the i. No suffiin case I. produced in by A. This is exactly the result produced by asresult by this produce cannot cient result they ca~ot reason appears why they cient reason some be may be some signment direct contract. No doubt itit may as by direct signment as well as Mr. old Mr. hard-hearted, old severe, hard-hearted, disadvantage duty to severe, owe aa c1uty to owe A to to A disadvantage to this in so more is it but B; of to young, easy-going B; but it is no more so in this C instead C instead of to young, easy-going the with the go with to go damages to the damages means the that BB means ,."Here assumed that again, itit isis assumed Here again, primary right. primary right. or "successors or his "successors and his X and with X J1'Thus Thus where contracted with defendant contracted the defendant where the lighting, for lighting, service for electric service all electric St. all assigns" Main St. "222 Main premises "222 his premises supply his to supply assigns" to defendant the defendant that the held that was,held fans consumer," itit was the consumer," by the required by heating reqUIred and heating fans and occupying assignee occupying an assignee plaintiff, an the plaintiff, was to the service to promised service the promised supply the to supply bound to was bound W. S. W. 179 S. 221, 179 Ark. 221, 12o Ark. Co., 120 E. Co., the Rock R.L&&E. Little Rock Co. v.v. Little Leader Co. premises. Leader the premises. Cem. Port. Cem. Associated Port. 358 Tolhurst v.v. Associated holding inin Tolhurst similar holding was aa similar There was (xgi5). There 358 (1915). Mfrs;, C. 414. . [r9o3] A. C.414Mfrs., [1903].A. HeinOnline -- 74 U. Pa. L. Rev. 219 1925-1926 220 220 UNIVERSITY OF OFPENNSYLVANIA PENNSYLVANIA LAW LAW REVIEW UNIVERSITY REVIEW kind of of aa case case than than in in any any other other assignment. assignment. The The social social service service kind rendered bythe the assignability assignability of of rights rights so so far far overweighs overweighs the thedisdisrendered by advantage to the debtor incidental to a change in creditors advantage to the debtor incidental to a change in creditors that that the latter latter isis disregarded. disregarded. In In no no case case however, however, isis the the actual the actual servservice required required of of AA changed changed by by the the assignment. assignment. ice 4. CC wishes wishes that that his his son son BB shall shall have have an an ample ample supply supply of 4. of coal, but but that that B B shall shall have have no no legal legal right. right. C C therefore therefore contracts coal, contracts with A A that that A A shall shall supply supply B's B's business business or or B's B's household household with with with coal, the primary right to delivery and the secondary secondary right right to coal, the primary right to delivery and the to the the value of of the the coal coal in in case case of of breach breach to to be be in in C C alone. alone. This This creates value creates in C C exactly exactly the the same same right right that that was was produced produced by by the the assignment assignment in in case 2. Further, Further, C's C's right right that A A shall shall supply supply B B with with coal coal is is in case 2. assignable by C. On C's death his right would pass to his perassignable by C. On C's death his would pass to his personal representative. representative. This This in in itself shows shows that there is is nothing nothing sonal in the the nature nature of of aa right right that that A A shall shall serve or supply supply B to make it it in 22 22 non-assignable. non-assignable. In almost almost all all cases cases where where aa "contract" "contract" is said to be non-as· non-asIn signable because it is "personal," what is meant signable because it is "personal," is not that the contractor's right right is is not not assignable assignable but that the performance performance re· recontractor's quired by his his duty is aa personal personal performance quired by duty is performance and that an attempt to perform by substituted person person would not discharge conto perform by aa substituted discharge the con· tractor's duty. In this sense the statement is correct if a proper tractor's duty. In this sense the statement proper interpretation shows that that the of the the agreement agreement shows the performance performance by by a interpretation of particular person is required. particular person is required. A A second second possible possible correct correct meaning meaning is is that that personal personal performperformance ance by by the the contractor contractor is is aa condition condition precedent precedent to his his right to perperformance by the other party, and an assignee of that right right will formance by the other party, and an assignee of ' It should be observed that the contracts between C and A in cases 3 and .. Ithave should be observed that the contracts between C and A in cases 3 and 44 might might have been been of of aa very very different different sort. sort. They They might might have have been been made made so so that that BB would be aa donee-beneficiary in would be donee-beneficiary in each each case. case. If If so so made, in in nearly nearly all all jurisjurisdictions there would dictions there would be be created created in in BB both both aa primary primary right right to to performance performance and and (in (in case case of of breach) breach) aa secondary secondary right right to to damages. damages. No No doubt doubt such such aa right right as as CC (the promisee) (the promisee) gets gets in in this this case case could could be be assigned; assigned; but but this this is is not not the the right right that was assigned in that was assigned in cases cases iI and and 2.2. No No doubt, doubt, also, also, the the right right of of BB (the (the doneedoneebeneficiary) could beneficiary) could be be assigned; assigned; but but BB was was not not aa donee-beneficiary donee-beneficiary in in any any of of the the four cases put--such fourservices cases put-such was was not not in in fact fact the the contract contract made. made. In In cases cases 33 and and 4, 4. the and the services and the the coal coal were were sold sold to to CC and and not not to to B; B; on on performance performance of of the the service or delivery service or delivery of of the the coal coal A A could could maintain maintain an an action action of of debt debt against against C C for price, and on for the the price, and on breach breach by by A A the the sole sole right right to to damages damages would would be be in in C. C. The point made is that however The pointexactly made is that however unusual unusual aa result result may may be be reached reached by by an an asassignment, signment, exactly the the same same result result may may be.reached be. reached by by aa direct direct contract. contract. That That the result is an unusual the result is an unusual one one isis irrelevant irrelevant in in either either case. case. HeinOnline -- 74 U. Pa. L. Rev. 220 1925-1926 OF CONTRACT RIGHTS ASSIGNMENT OF ASSIGNMENT 221 non-fulfilment of this condition. In this case, as fail in case case of non-fulfilment If it delegated. 2233 If be delegated. in the preceding preceding one, performance performance cannot be it fail even should be meant that the assignee of the right would though the contracting assignor himself performs performs as originally agreed, thus fulfilling the condition condition precedent, precedent, the statement statement is entirely erroneous. ' correct meaning is that in a bilateral A third possible correct bilateral conboth his right and his contractor has no power to assign bpth tract the contractor duty. Thus it has been said: "When rights arising out of a conperfonned by the contract are coupled with obligations to be performed confidence that it tractor and involve such a relation of personal confidence exercised 24 be exercised should be 24 must have been intended that the rights should and the obligations obligations performed performed by him alone, the contract, includincludso In the following cases the performance performance due was held to be personal and performance would manner that his performance not delegable to another person in such manner aseither discharge discharge the assignor's duty or fulfil a condition precedent to the asi66 At!. AtI. Eq. 22, compensation; Wooster signor's right to compensation; J. Eq. 22, 166 Wooster v. Crane, 73 N. J. Callaghan & Co., (services as printer and publisher); Io93 (i9o7), 1093 (1907), (services publisher); Foster v. Callaghan 248 Fed. 944 (1918), (same); Linn Linn Co. Abstract Abstract Co. v. Beechley, 124 Iowa Iowa (igi8), (same); (9o4), (services as abstractor of titles) W. 702 (1904), 146, 99 N. W.702 (services titles) ; Corson Corson v. Lewis, iog N. W. 735 (19o6), (1906), (services (services as attorney at law); N. Y. 77 Neb. 446, 109 Y. 280, 73 N. E. 48 180 N. N. Y. Bank Note Co. v. Hamilton Bank Note Co., i8o '14, 129 129 N. (services as selling agent) ; Paige v. Faure, 229 N. Y. II4, (i9o5), (services (1905), N. E. i58. (192o), (same); (same); Barber Barber Agency Co. v. Co-op. Barrel Barrel Co., 133 Minn. Minn. 207, 158. (1920), v. Morris, W.38 (same); New England Cabinet Cabinet Works v. Morris, 226 Mass. 38 (1916), (i916), (same); N. W. (1917), (services (services in designing 115 N. E. 315 (1917), 246, II5 designing and installing druggists' (services as (i9o5), (services fixtures); fixtures) ; Deaton v. Lawson, 40 Wash. 486, 82 Pac. 879 (1905), (sales agency physician);; Thomas-Bonner (1922), (sales physician) Thomas-Bonner Co. v. Hooven, 284 Fed. 386 (1922), (services in giv(1923), (services 2oo Ky. 4 (1923), contract) ; Beard v. Beard, 254 S. S. W. 430, 200 contract) son). ing support and a home for a mother with her son). performance due was held not to be personal; In the following cases the .performance personal; delegated it was held the performance held performance by the substitute to whom the assignor delegated to to discharge the duty of the assignor and to fulfil the condition precedent precedent to 147 & N. C. R. Co. v. Atlantic Co., 147 the right assigned to the assignee: assignee: Atlantic & & Co. v. cordwood); Browne (iqo8), (delivery N. C. 368, 6i 61 S. E. 185 (1908), (delivery of cordwood); Browne & booklets) ; ii5 Pa. 156 (igii), (19II), (printing (printing advertising booklets) Sharkey Co., 58 Or. 480, lIS (x896), (drilling oil wells) i72 Pa. 443, 133 133 AtI. Atl. 56o 560 (x896), wells) ; Overby Overby Galey v. Mellon, 172 1922), (same); Devlin v. Mayor, etc., (Tex., 1922), v. Mona Trust, 240 S. W. 581 (Tex., streets). (cleaning city streets). (1875), (cleaning of N. Y., 63 N. Y. 8, 23 N. Y. Supp. 891 Bgl (1875), another "In Sf In its proper sense, a "right" is a claim to certain conduct conduct by anotTlcr is evident person, enforced by society. It It ,is evident that, in this sense, the possessor possessor person, of a right never never "exercises" "exercises" it. It It is always the other party, the one one owing owing "exercise." The form of language the correlative duty, who is to perform or "exercise." used shows that the court was thinking of performance performance by the contractor who assigns, and hardly performance by anhardly at all of that contractor's right to performance other. . HeinOnline -- 74 U. Pa. L. Rev. 221 1925-1926 222 m UNIVERSITY OF PENNSYLVANIA PENNSYLVANIA LAW LAW REVIEW REVIEW UNIVERSITY ing both both his his rights rights and and his his obligations obligations cannot cannot be assigned." assigned." 25 25 ing As has has been been seen seen previously, aa legal legal duty cannot cannot be be escaped escaped by by As assignment; and, as has just been been said, said, a truly personal personal performperformassignment; ance cannot cannot be be delegated. delegated. ance It is sometimes sometimes said said that where where the the contract contract makes makes it the the It duty of of one one party party thereto thereto to to render render a personal personal service, service, special special duty trust and confidence confidence being being reposed reposed in him, a valid valid assignment assignment isis trust impossible "as long long as such such contract contract is executory C?Cecutory on the part of of impossible the party party in whom such such trust trust and confidence confidence is is reposed." reposed." 26 26 the both While this is correct if the assignment is meant to include include both assignment is meant While this is correct duties and and rights, it is not not correct correct if it is meant meant to say that a right right duties cannot be assigned assigned as long as a duty of the assignor, requiring requiring cannot personal performance performance remains remains executory. The assignor's assignor's his personal of the character personal right is assignable spite the ~rsonal character the perof spite in assignable right is still under under a duty to render; render; but if it is a right that formance he is was conditional conditional upon some personal personal performance performance by the assignor, assignor, was remains so conditional after the assignee gets the right by asit remains teacher can assign his wages wages to besignment.2217 Thus, a school teacher (189o). .. Delaware Co. v. Diebold Safe & & Lock Co., 133 133 U. S. S. 473, 488 (1890). =Delaware I., who Brewer, /., (1893), by Brewer, 152 U. S. 634 (1893), This was quoted in Burck v. Taylor, 152 transferred an interest in it to the "the contr&ctor contractor could never have transferred added: "the plaintiff so as to vest in him a right to take part in the work or a subsequent plaintiff recover from the State on completion of the work." The words "right right to recover performance due thinking of the performance to take part" show that Brewer also was thinking performance by a from the contractor contractor who was the assignor, and meant that performance substituted party would not have fulfilled a condition precedent to the right substituted clearly to payment. Judge Jackson, in a dissenting opinion, distinguishes more clearly enforcement of right against another between between performance of duty and the enforcement "There is a class of cases where the services to be rendered are when he says: "There of such a personal character that they cannot be assigned; but where is the aucertain work a memthority that holds that where a firm is a contractor to do certain ber of the firm cannot cannot assign or transfer his share of the profits to arise therethe defendant, a from?" The case is no doubt well decided for the reason that the second assignee, had fully performed the building contract under a novation novation made with the State. §2248. (2d ed.), ed.), §2248. _PAGE, CONMACTS, (2d sa PAGE, CONTRACTS, In (1x14). In 909 (19i4). 103 N. E. 909 v. Ziegler, 216 Mass. 287, 103 It American Lith. Co. v. "American (igo8), the vendee of land 3o5 (1908), 153 Calif. 509, 96 Pac. 305 Montgomery v. v. DePicot, 153 on credit tendered his ovm own notes secured by the agreed mortgage (and at the specific performance trial the notes of the the assignor also) and got a decree for specific & Ohio R. v. Baltimore & & T. T. Co. v. Bonding & against the vendor. vendor. In American Bon.ding existence is nothing in the existence Co., 124 "There is the court said: "There (x9o3), the 124 Fed. 866 (1903), his the creditor of his of such counter obligation to prevent an assignment by the such counter right, or, or, right after and thus perfected his right, obligation, and he has performed that obligation, after he from even before, if no to shift the duty of performing it from made to no attempt is made himself to the assignee." HeinOnline -- 74 U. Pa. L. Rev. 222 1925-1926 ASSIGNMENT OF OF CONTRACT CONTRACT RIGHTS RIGHTS ASSIGNMENT come due dueunder under an an existing existing contract contract even even though though his his services services are are come the exactly be will right still to to be be rendered; rendered; but but the the assignee's assignee's right will be exactly the still of same as as the the assignor's, assignor's, conditional conditional upon upon proper proper performance performance of same the work work by by the the teacher teacher in in person. person. the Of course, course, even even in in cases cases where where the the required required performance perfonnance isis Of that not "personal," "personal," the the non-personal non-personal performance perfonnance that isis required requ1red not may be be aa condition condition precedent precedent to to the the right right to to payment payment contracted contracted may in return. return. In In such such cases cases the the. right right isis assignable assignable before before fulfulfor in for fulfillment that fact the and of the condition precedent; and the fact that fulfillment fillment precedent; fillment of the condition of this this condition condition is is delegated delegated to to the the assignee assignee of of the the right right to to paypayof 28 assignment. the of validity the ment does does not not in in any any way way affect affect the validity of the assignment. 28 ment Thus, where where the the duty duty to pay pay for for coal coal is is conditional conditional on on certain certain Thus, deliveries these of making the made, instalment deliveries being the making of these deliveries being instalment deliveries payment by by the condition precedent precedent to the the seller's seller's right right to payment is a condition of these these deliveries deliveries is is in no sense sense a personal personal buyer; but but the the making making of buyer; perfonnance. A A tender of delivery delivery by by an an assignee assignee of of the seller's seller's performance. right would fulfill the condition condition precedent precedent and the the assignee assignee could could buy~. then enforce enforce the right against against the buyer. then his An attempt by the assignor to assign both his right and his It been supposed be assigned in AmerAmersupposed that the right was too personal to be It has been Belden Min. Co., Co., 127 U. S. 379 (1888). (1888). The trouble trouble ican Smelting & & R. Co. v. Belden was, however, that the assignor not only assigned his right to delivery of ore, but also became unready unready to perform his purely personal duty of crushing, sampling, and assaying the ore so as to determine the amount to be paid. His right to delivery (and therefore the right of the assignee also) also) was conditional upon his continued continued readiness to perform in person. Had he fulfilled this condiright to delivery was not nonThe right tion, the assignee should should have won the suit. The assignable. ..="In "In principle it would not impair the rights of the assignee, or destroy impair the as between that the assignee, as claim, that the assignable of the contract or claim, assignable quality of himself and assumed some duty in performing the condiassignor, has assumed and the assignor, or is made the agent or subtions precedent to of action, or cause of perfected cause to aa perfected to be service to the service If the contract. If the contract. of the stitute performance of the performance in the assignor in of the assignor stitute of and such necessarily personal, and is not necessarily rendered performed is be performed to be condition to or the condition rendered or the of the the rights of and the parties, and the parties, of the as intent of the intent to the due regard to with due only with can only as can and contracting party, and original contracting the original by the adverse performed by or performed rendered or be rendered party, be adverse party, contract, the contract, of the performance of the performance the from the himself from disqualified himself not disqualified latter has not the latter assignee, is the assignee, him is for him acting for and acting the representing and individual representing the individual that the fact that mere fact the mere conor conof, or rescission of, as aa rescission operate as not operate and will not servant, will or servant, agent or mere agent the mere not the and not performing for performing agent for the agent Whether the stitute contract. Whether the contract. terminating the for terminating cause for stitute aa cause interest, an interest, with an coupled with power coupled the or aa power power, or naked power, under aa naked acts under contract acts the contract by power by of power delegation of the delegation of the cannot effect of the effect vary the or vary character or the character affect the cannot affect distime disno time at no was at contractor, was the original contractor, the original Hackley, the contractor. Hackley, original contractor. the original perthe perfor the disqualified for he disqualified was he charged nor was city, nor the city, to the obligations to his obligations from his charged from part his part perform his to perform position to in aa position formance times in all times at all was at but was contract, but the contract, of the formance of Y. N. Y. 23 N. Y. 8,8, 23 N. Y. 63 N. Y. 63 N. Y. of N. etc., of of Mayor, etc., v. Mayor, Devlin v. agreement." Devlin this agreement." of this . Supp. (1875). 891 (1875). Supp. 891 HeinOnline -- 74 U. Pa. L. Rev. 223 1925-1926 224 224 UNIVERSITY OF OF PENhSYLVANIA PENNSYLVANIA LAW LAW REVIEW REVIEW UNIVERSITY duty under under aa bilateral bilateral contract will sometimes be be interpreted as duty of his duty, duty, particularly where the the performance aa repudiation of required by by the duty duty is personal to to the the assignor and not possible required of delegation. delegation. This This will prevent any enforcement enforcement of the the right right of 29 by the assignee thereof, wholly independent independent by the assignee thereof,29 unless the right is wholly of the the duty duty and not conditional upon performance or readiness of to perform. to A contract contract right is hardly ever made non-assignable non-assignable by the A fact that that it is conditional 80 80 or is for some other reason not enforceable until aa future date. A A right to money not yet due can can be assigned. assigned. A right to the payment of money to become due on be condition of services yet to be rendered 31 81 and on condition that condition the obligee does not drink intoxicants is an assignable right. The the obligee does not right of the assignee is, of course, right of the assignee subject to the same conditions as was the right of the assignor. The power of assignment may exist before all of the facts The power of necessary to the necessary to the enforceability of the right exist, as appears in the preceding some of the operative facts the preceding paragraph; paragraph; but at least so~e must exist. If loan must exist. A, expecting that he will thereafter make a loan to B, B, assigns assigns to C his right to repayment, C gets no right against to against B at the the time time of the assignment A had none to assign. B at of the assignment because A The same is true even though B had asked for such a loan. There The same is true even "See Crane Ice Ice Cream Cream Co. Co. v. Co., 128 AUt. ... See Crane v. Terminal Terminal Freezing Co., AU. 280, 285 (Md., 1925) S925); American Smelting Smelting & & R. Co. Belden Min. Co., .supra; (Md., ; American Co. v. v. Belden supra; ANSON, ANSON, CONTRACTS 1924), §303, CONTRACTS (Corbin's (Corbin's ed. ed. 1924), §303, n. 2. Where aa party obtained aa rescission duties under under a bilateral Where party has has obtained rescission of of his his duties bilateral contract, his rights of such duties duties will win normally be be tract, his rights dependent dependent upon upon the the fulfilment fulfilment of rescinded In such by aa separate rescinded also also by by implication. implication. In such case, case, by separate assignment of the rights the assignee gets nothing. Tarr i99, 93·AU. 93-Atl. 428 Tarr v. Veasey, Veasey, 125 Md. Md. 199, rights ('9,s).the assignee gets nothing. (19 15). • . the general .. The The only only exception exception to to the general rule seems to be in the case of a right right created contract where performing is is created by by an an aleatory aleatory contract where the the promisor's promisor's duty duty of performing conditional upon an uncertain event and party might conditional upon an uncertain event and the the assignment assignment to a new party considerably increase the probability of the happening happening of this this event. For For this considerably increase the probability of reason of an an insured insured under under aa policy policy of of fire fire insurance insurance has been been held held reason the the right right of not assignable. VANCE, INsURANCE, 50. In such a case, an assignment assignment of the the not assignable. VANCE, INSURANCE, 50. In right cannot be made without changing materially the conditions conditions and and extent extent of of right cannot be made without changing materially the correlative correlative duty. .• 11 ' It has been held It has been held that that such such an an assignment as~ignment remains remains effective effective even even though though the the assignment assignment but but before before the the assignor assignor is is discharged discharged in in bankruptcy bankruptcy after the wages v. Boston Boston & & M. M. 1. R. R., R., I96 196 Mass. Mass. 528. 528, wages are are earned. earned. Citizens Citizens Loan Loan Assn. Assn. v. 82 (i9o7); 82 N. N. E. E. 696 ¥ (1907); Mallin Mallin v. v. Wenham, Wenham, 209 209 Ill. III. 252, 2,52, 7o 70 N. E. 564 564 (1904). (1904). Contra: IO3 N. v. Northern Northern Pac. Pac. R., R., 95 95 Mimn. Minn. 35, 35, 103 N. W. W. 704 704 (1905); (1905); Hupp Hupp Contra: Leitch Leitch v. v. v. Union Union Pac. Pac. R., R., 99 99 Neb. Neb. 654, 654, 157 157 N. N. W. W. 343 343 (1916). (1916). HeinOnline -- 74 U. Pa. L. Rev. 224 1925-1926 ASSIGNMENT OF CONTRACT CONTRACT RIGHTS ASSIGNMENT OF 225 must at least be a contract at the time of the assignment; assignment; acceptance as well as offer must have taken place. On the other hand, if the right against B that A purported purported to assign to C afterwards aftenvards comes comes into existence, the assignment has been held in a number number of cases to transfer transfer the right at once once to BC.8822 There seems to be nothing in the interests interests of A and "Bdebtor-to prevent such a result; but in givthe assignor and the debtor--to ing effect to such an assignment the interests of A's creditors protected. Assignments in advance advance of the creation creation of of should be protected. the right assigned may easily be used in fraud of creditors. assigned Thus far, with the exception exception mentioned mentioned in note 30, we have discovered no contract contract right that is not assignable. There are a few cases, however where the welfare welfare of the public is believed to be involved and where where the substitution of a new obligee obligee by asstatutes signment is against against the public interest. There are some statutes forbidding assignment; and other assignments have been held invalid by the courts on some supposed supposed principle of public policy. Thus, a right to a Federal pension has been made non-assignable; non-assignable; and the right of a public officer to future salary not yet due has non-assignable.88 been held non-assignable. 88 PROHIBITION ASSIGNMENT. PROHIBITION OF ASSIGNMENT. a contract The parties parties to a' contract may themselves agree agree that a right created not be assignable. It may be regarded created thereby shall npt regarded as doubtful agreement to this effect would indoubtful whether whether a mere oral agreement validate a subsequent assignment to an assignee who had no notice of the agreement. But a provision of this sort in a written contract assignee of a contract may properly be regarded as notice to any assignee right based on that contract. There are many cases where where such such a prohibition prohibition in writing has been held operative to prevent any power to assign and where the assignee failed in his action to enforce the right. Thus where where an employee's employee's time pay check was ' Field v, of N. i79 (1852); (1852); Tailby v. Official Receiver, "'Field v. Mayor Mayor of N. Y., Y., 6-N. 6'N. Y. 179 Official Receiver, App. Cas. 13 Apll. Cas. 523 (1888). (1888). Sample, 168 Ala. 270, So. 182 18a (1910); (igio) ; Anderson v. Bran270, 53 So. •"Stewart Stewart v. Sample, strom, 173 173 Mich. I57, 139 39 N. 40 (1912); (1912); Roesch Roesch v. Worthen Co., Co., 95 Ark. Mich. 157, N. W. W.40 v. Worthen 95 Ark. strom, 482, I3o S. S. W. 55! 482,130 551 (I91o). (1910). •f . HeinOnline -- 74 U. Pa. L. Rev. 225 1925-1926 226 226 UNIVERSITY OF OF PENNSYLVANIA PENNSYLVANIA LAW LAW REVIEW UNIVERSITY its face face made payable payable only only to the the named named payee and declared declared on its and where where on the the detached detached stub of of such such pay pay non-transferable, and check the employee employee had signed an agreement that he he would preprethe check in in person and would not transfer transfer it, it, it it was held held sent the that an assignee assignee got no no enforceable enforceable right. right.3344 The like has has been held in in several several cases cases where trading trading stamps have been marked marked held on their face "not transferable" 85 This has been assumed to be be on face "not transferable." 3~ 3 6 36 as a matter matter of of course in many cases. the rule as In one one case, case, however, however, the United States Supreme Supreme Court has In said that aa prohibition against assignment contained in aa writwritten contract contract was was ineffective, likening the contract right to perper-. ten 87 sonal chattels.37 There has been aa strong tendency to hold that goods and chattels cannot be made inalienable. inalienable According According to goods expressions used by the Supreme Court, not only are already existexpressions ing contract contract rights not inalienable; they cannot even be made ining alienable ab ab initio initio by the party who is their original creator. alienable v. Bes Line Const. Const. Co., Co., 23 23 Okla. 131, 131, 99 Pac. 775 (9o9). .."Barringer Barringer v. Bes Line (1909). In accord: Joint Joint School School Dist. Dist. v. v. Marathon Marathon Bank, 204 204 N. W. 471 (Wis., 1925); 1925); accord: Bonds-Foster L. Co. v. No. Pac. R. Co., 53 53 Wash. 1o Pac. 877 (1909); (1o9) ; Bonds-Foster L. Co. v. No. Pac. R. Co., Wash. 302, 302, 101 State v. Kent, 98 Mo. Mo. App. App. 281, 281, 71 7, S. S. W. W. 1066 io66 (1902); (ixo2); Tabler & & Co. v. v. ShefState v. Kent, 98 field Coal Coal Co., Co., 79 79 Ala. 377 (1885). Contra: Aldridge v. Graves, 131 field Ala. 377 (1885). Contra: Aldridge L. Co. v. S. W. 846 (ipxo); Lumber Co. v. Hall, 94 Ga. 539, 21 21 S. E. 154 S. W. 846 (1910); Bewick Bewick Lumber Co. v. Hall, 94 154 (1894), relying on aa statute statute declaring declaring that that choses choses in in action (1894), relying on action shall be assignable. But Oklahoma had a similar statute, and the court rightly said said that that it was was only But Oklahoma had a similar statute, and the court rightly only for purpose of nullifying the the old common law rule against assignment, for the the purpose of nullifying old common assignment, not for the purpose of invalidating agreements that the contract right shall express agreements for the purpose of invalidating express not be assignable. assignable• & Hutchinson Co. v. Siegel, .."Sperry Sperry & Hutchinson Co. Siegel, Cooper & Co., Co., 225 225 Ill. App. 54o 540 the assignee got no primary ((1922) 1922) ;; holding holding that that the assignee got primary right by delivery delivery with intent to assign, and also that such delivery did not assign the secondary right to to assign, and also that such delivery assign the damages for breach in absence damages for anticipatory anticipatory breach absence of evidence evidence to show intent to do this. In this. In accord: accord: Sperry Sperry & & Hutchinson Hutchinson Co. Co. v. Weber & & Co., 161 161 Fed. 219 219 (Igo8). 755 (I915), (1908). Cf. Ct. Same Same v. v. Fenster, Fenster, 219 219 Fed. Fed. 755 (1915), saying: saying: "The "The right right to redeem the stamps is a property right transferable by possession while the license deem the stamps is a property right transferable by possession license to use them for advertising against to use them for advertising purposes purposes is is not not transferable." The prqvision prQvision against assignment is not discussed. assignment not NSee case of American Bonding Bonding & .. See discussion discussion in in the the excellent excellent case of American & T. T. Co. Co. v. v. Baltimore & Ohio Co., 124 Baltimore & Ohio R. R. Co., 124 Fed. Fed. 866 (i9o3). (1903). 'Portuguese Bank v. IT Portuguese Bank v. Welles, Welles, 242 242 U. U. S. S. 7 (1916). (1916). The supposed supposed policy on on which said to which this this statement statement was was based based cannot cannot be be said to have have been been demonstrated. demonstrated. See See Comment, 26 Comment, 26 YALz YALE L. L. J., J., 304 304 (1917). (1917). It It should should be be observed observed that that in this case case the obligor the obligor did did not not object object to to the the assignment, assignment, but but paid paid the the money money into into court. If If he he is is willing willing to to abandon abandon his his immunity, immunity, the the assignee assignee may may well get get the the money money as as against against other other claimants. claimants. The The prohibition prohibition was was not not for for their their protection. protection. To To the the same same effect effect is is Fortunato Fortunato v. v. Patten, Patten, 147 147 N. N. Y. Y. 277, 277, 52 52 N. N. Y. Supp. 872 872 (1895). (1895). HeinOnline -- 74 U. Pa. L. Rev. 226 1925-1926 ASSIGNMENT ASSIGNMENT OF CONTRACT CONTRACT RIGHTS 227 There are are some some cases cases that that definitely definitely hold hold aa prohibition prohibition against against There 8 33s invalid. be to right a assigmnent of of right to be invalid. ' assignment Express Express provisions provisions against against assignment assigmnent are are usually usually found found in in some such such generaf generaf words words as "this "this bilateral contracts contracts and and are are in some bilateral contract shall shall not not be be assignable." assignable." In In the pay pay check check and and trading trading contract stamp cases cases this this was not the the case, for there there the the contracts contracts were were stamp unilateral and and the the prohibition prohibition was was clearly clearly directed directed against against the unilateral holder of the the right right alone' alone: Such Such a general general prohibition prohibition in in a biholder of against be directed likely to more is much contract lateral contract much more likely to directed against atlateral tempts to to delegate delegate performance performance of a duty by the promisor promisor rather rather tempts by the promisee. For For such a against assignment assigmnent of a right by than against should limited limited purpose purpose they should always always be held held valid; valid; but but they should rights." of contract be interpreted interpreted to forbid assignment assigmnent of contract rights. S99 not be AsSIGNMENT DoES DOES NOT NOT AFFECT PERFORMANCE, PERFORMANCE, ASSIGNMENT The performance, whether action action or forbearance, that that an The obligor is under a duty to render cannot be changed in any mateobligor asSigmnent of the right by the obligee. It must be rial way by assignment disadvantage to a'debtor creditor a debtor that his creditor admitted that it is some disadvantage •"The The Iowa Code, §9452, provides: 'Wten ''When by by the terms of an instrument instrument assignment thereof shall nevertheless nevertheless be valid." valid." its assignment is prohibited, an assignment provision in a policy policy of fire insurance insurance that it shall not be assigned before before A provision because the risk is not the same with a new owner. But a proloss is valid, because after loss is not valid, since assigned after since policy shall be void if assigned vision that the policy the risk is not affected by.such an assignment. Spare v. Home Mut. Ins. Co., 598 (1874), (1874), (semPennebaker v. Tomlinson, (1883); Pennebaker 17 Fed. 568 (1883); Tomlinson, Ii Tenn. Ch. 5gB (sem(semble) ; E. 233 (i889), (Il!8g), (semble); ble) ; Nease v. Insurance Co., 32 W. Va. 283, 99 S. Eo (3d ed.) ed.) §386. Where a bank issued a pass book expressly May, Insurance (3d thereafter in the bankbanksubject to all rules and regulations that might be posted thereafter to ing room, and later the bank posted a rule that money was payable only to assignee of the depositor in per~on, person, this rule was held void as against an aSsignee the depositor (iiS). S. v. Public Bank, 151 N. Y. Supp. 94 (1915). entire deposit. Bank of U. S. (i91i), a contract for •" In Lockerby v. u6 Pac. 463 (19U), v. Amon, 64 Wash. 24, 1i6 the sale of land provided that '"no "no assignment of this agreement shall be valid It was vigorously argued argued that this was inserted without the consent of Amon." It in order to secure payment payment and that on tender of payment in full by the asIn accord accord is the court held otherwise. In signee Amon Anon must convey to him; but the (1898). In a note, Oil Co., 55 Neb. 337, 75 N. W. 859 (18gB). Omaha v. v. Standard Oil against the great weight of authority is against S.) 1064, io64, it is said that the 35 L. R. A. (N. S.) v. Cheney, (1896); Wagner v. 74 Fed. Fed. 52 (18g6); v. Bilby, 74 this decision. See Cheney v. 195, 75 N. 72 Minn. Minn. 195, v. Eklund, 72 2o N. W. 222 (1884); Johnson v. x6 Neb. 202, 20 16 i68 Calif. 32, the & E. Co., 168 Francisco Gas & W. 14 (18gB). v. San San Francisco (1898). In Butler v. should of it should no assignment assignment of court provided that no court said: "The contract expressly provided portion of the work be made by Butler (the contractor) nor any portion (the building building contractor) only to the perthis prohibition went only that this sublet court held that by him." The court sublet by to payment. formance of the work and not apply to the right to and did not HeinOnline -- 74 U. Pa. L. Rev. 227 1925-1926 228 228 UNIVERSITY OF OF PENNSYLVANIA PENNSYLVANIA LAW LAW REVIEW UNIVERSITY has power power to to substitute substitute aa new new creditor without the the debtor's debtor's conconhas sent. It would be a much greater disadvantage, without without any parwould a greater disadvantage, sent. ticular gain gain to the the community, community, to give the the creditor creditor power to to ticular change the the perfonnance performance due due from from the the debtor. debtor. \Ve We have seen seeh change above that that if B has has aa right right that A A shall shall serve serve as his his valet, he cancanabove not by assignment make it A's duty to serve C as valet; also that it A's duty serve C also not by assignment if B B has has aa right right that A A shall supply his needs needs for coal he cannot if 40 make it it A's A's duty duty to supply the needs of c. C.40 In like manner, if make A owes owes B B aa debt debt of of $100 $ioo payable payable at the First National Bank on on A May i, B can assign his right to the Second National Bank; but May I, B can assign he cannot cannot make it it A's duty to pay at the Second Bank Bank or on any he other day than May i. If A sells his stock of hardware, busiother day than May 1. ness, and and good good will to B and promises to forbear from competicompetiness, tion for for five five years, years, B B can can assign his right along with the business tion to C; C; but but he he cannot cannot by by such such assignment make it A's duty to to forbear to solicit hardware business in any greater territory than the business business covered C's business may be the covered previously, even though C's more widely extended. In classes of of cases cases and to a verylimitedextent, very limitedextent, it seems In certain certain classes that the actual performance by the obligor can be changed that the perfonnance changed by an assignment. Thus, if assignment. Thus, no particular particular place is specified specified for the payment of aa debt, debt, the the debtor debtor must search for his creditor and pay ment of him person. If the creditor should assign his right, it seems him in in person. that the debtor must now seek the assignee in order order to make payment. This might require the assignee to pay at a much more assignee ment. This might require distant place. There is an equal equal possibility, however, that it is distant place. There the obligee and distant the original original obligee and not the assignee who goes to the distant place; case the assignment assignment would place; and and in in such such case would save trouble. As business distant business is now conducted, conducted, it is not difficult to pay at a distant ".. Crane Cream Co. v. Terminal x28 Ati. Crane Ice Cream Terminal Freezing Freezing Co., 128 Atl. 28o 280 (Md., (Md., 1925), 1935), (one having having aa right in his (one right to to all all the the ice ice he he may may use use in his business business for three three years years cannot cannot create create in in an an assignee assignee aa right to all all the ice such such assignee assignee may may use in its Frankfort & & C. C. R. R. Co. v. Jackson, 153 153 Ky. 534, 534, 156 S. W. io3 103 its business) business) ;; Frankfort (1913); (1913); Kemp Kemp v. v. Baerselman, Baerselman, [i9o6] [1906] 22 K. B. B. 6o4, 604. (B (B agreed agreed to supply K with "all fresh fresh eggs with "all eggs that that he shall require require for manufacturing manufacturing purposes purposes for one year) io6 (186g), (1869), ("all year);; Lansden Lansden v. v. McCarthy, McCarthy, 45 45 Mo. 106 ("all fresh beef beef . .. .. that might might be be ordered ordered or or required required by by B. B. & & K. for the use use and consumption consumption of said hotel"); hotel"); Tifton, Tifton, etc., etc., R. R. Co. Co. v. v. Bedgood, Bedgood, 116 116 Ga. Ga. 945, 945, 43 S. S. E. 257 (1903), (1903), (R. Leader (R. R. R. contracted contracted to to haul haul all all lumber lumber cut cut by by H. H. & & S.). S.). Cf. ct. Leader Co. v. Little Rock Rock R. R. & & E. E. Co., Co., 12o 120 Ark. Ark. 221, 221, 179 179 S. S. W. W. 358 358 (xg5) (1915) ; Tolhurst Tolhurst v. Associated Associated Port. 414. A. C. C.414Port. Cem. Cem. Mfrs., Mfrs., [x9o3] [1903] A. HeinOnline -- 74 U. Pa. L. Rev. 228 1925-1926 ASSIGNMENT ASSIGNMENT OF OF CONTRACT CONTRACT RIGHTS RIGHTS place through through the thebanks banksor orother other established established agencies. agencies. The The posposplace selis assignment the by debtor put upon the debtor by the assignment is selsible added burden the upon put sible added burden courts the by and thus thus far far itit has has been been disregarded disregarded by the courts inin domgreat, great, and dom of the thebusiness business community. community. theinterest interestof the Wherever the the promised promised performance performance consists consists partly partly inin the the Wherever aa of case the in of new legal relations in the obligee-as in the case of creation obligee-as the in relations creation of new legal perthe causes of goods-it goods-it may may be be said said that that the the assignment assignment causes the persaleof sale to differ differ in in that that these these legal legal relations relations must must now now be be crecreformance to formance to the the ated in in aa different different party. party. This This difference difference isis immaterial immaterial to ated 09 44oa debtor. debtor. In cases cases where where the the performance performance of of the the obligor obligor isis not not changed changed In in any any way way by by the the assignment, assignment, itit may may reasonably reasonably be be said said that that the the in by held previously that as of the assignee is the same right as that previously held by right right same the is assignee the of right slightly is and be can right the assignor; but to the extent that the the right can be and is slightly that the assignor; but to the extent be aa changed by by assignment, assignment, the the assignee's assignee's right right must must be be said said to to be changed new right right pro pro tanto, similar similar in all all other other ways ways to that that previously previously new the assignor. held by the DEFENSES AND AND "EQUITIES" "EQUITIES" DEFENSES The great difference difference between between instruments instruments ordinarily ordinarily described as "negotiable" "negotiable" and contracts not so described is that the holder of aa negotiable instrument frequently has power to create power aa right in a transferee when he has none himself. No such power negotiafrom distinguished exists of. assignment as exists in any case of. assignor tion. An assignee never gets -aa better right than the assignor tion. An void, voidable, claim was void, had. reason the assignor's claim for any reason If for had. If asthe asclaim is also conditional, so also is the claim of the unenforceable, or conditional, or 41 4 1 set-off or counterclaim, signee. If defense, counterclaim, or set-off any defense, the debtor had any If the into the goods into·the deliver goods to deliver -Usually obligor to the obligor of the duty of the duty made the be made can be ' Usually itit can assignor the assignor to the delivery to the delivery where the possession however, where so, however, not so, assignee; not an assignee; of an possession of the of the benefit of the benefit for the performance for was personal performance purely personal render aa purely to render him to enable him to enable was to impossible. this make would hands of an assignee would make this impossible. obligor and delivery into the assignee an of hands the into delivery and obligor 27. n. ~7. supra, n. Co., supra, Min. Co., American Belden Min. v. Belden Co. v. P.Co. &R. Smelting & American Smelting without promise without informal promise an informal on an U Thus, if based on was based claim was assignor's claim the assignor's 'Thus, if the was claim was assignor's claim the assignor's If the right. If sufficient no right. has no assignee has the assignee consideration, the sufficient consideration, promised has promised If AA has assignee's. If the assignee's. voidable also isis the so also infancy, so or infancy, fraud or for fraud voidable for and person and by BB inin person work by BB $1000, specified work of specified completion of the completion after the payable after sooo, payable condibe condiwill be from BB will assignee from only any assignee of any right of the right in, the comes in, ship comes As ship after A's only after ship. A's ship. of A's arrival of the arrival on the and on tional by BB and work by thework of the completion of the completion onthe tional on ratificaa ratificaby g., (e. removable If the defects in the assignor's right were removable (e. g., by a were right assignor's the in defects If the tion), assignment. after assignment. removable after remain soso removable they remain tion), they HeinOnline -- 74 U. Pa. L. Rev. 229 1925-1926 230 230 UNIVERSITY OF OF PENNSYLVANIA PENNSYLVANIA LAW LAW REVIEW REVIEW UNIVERSITY good against against the the assignor, assignor, it is is good good also also against against the the assignee, good it existed existed before before notice notice of of the assignment assignment is is received received by by provided it provided 42 If a first assignee assignee assigns assigns to to a second second assignee, assignee, any any the debtor.42 If the that the debtor debtor had against against the the first first assignor assignor is is good good defense that defense against both both the the first first and and second second assignees; assignees; and and any any additional additional dedeagainst the against had set-off that that the debtor debtor had against the counterclaim, or set-off fense, counterclaim, assignee while he was in in possession possession of of the the claim, or or after after first assignee second assignment assignment but before before notice notice thereof thereof by by the debtor, the second 43 Such good against against the second second assignee.43 Such is is the the case case even even is good is a assignee, previous any previous assignee, though the assignee in question, or any in question, the assignee though purchaser for value without notice. A debtor debtor cannot cannot by assignassignpurchaser ment be put in in a worse worse position position in any respect, respect, except except so far as result from being being indebted indebted to a new and more pressing pressing this may result creditor. so-called A difference must be be taken, however, with respect respect to so-called equities." These "latent equities." "latent These are claims claims of third persons, persons of other than than the debtor. The rule followed by the majority of other "latent equity" equity" of a third person person does not surcourts is that the "latent 44 Thus innocent purchaser purchaser for value. 44 vive an assignment to an innocent if the assignor is a mere trustee for X, but he holds a document document that reasonably reasonably leads the assignee assignee to believe that the assignor is value to him for the assignment, the unlimited owner and to pay value claims of X are inferior to those of the assignee. Again, if a claims " WILLISTON, CONTRAcrs, §433. "WILUSTON, CONTRACTS, §433• (Pa., Rawle 227 v. Metzgar, Metzgar, 1I Rawle in Metzgar Metzgar v. argued in was well well argued "The point was .. The point 227 (Pa., assignor "Notice puts an end to all privity between 1829). between the assignor 1829). Counsel said: "Notice and obligor, and the assignee becomes becomes the owner of the bond, subject to any existing equity against the obligee. After notice of the assignment, assignment, a new contract arises between the obligor and the assignee, who holds a chose in If he action no more negotiable than it was in the hands of the obligee. If transfers it, he does so liable to all the equity arising from the contract beof an assignment assignment not the case, the effect of If this be not tween him and the obligor. If J., C. J., agreed, Gibson, C. negotiable." The court agreed, would be to make the instrument negotiable." (set-off) the right of defalcation (set-off) time of the assignment, the saying: "At the time By obligor and the intermediate assignee. By the obligor in full force between the existed in subsequent assignee in a more advanput aa subsequent right, then, can the latter put what right, this state, no assignee, whether himself? In this than he held himself? situation than tageous situation notice; it being his legal or equitable, can affect to be prejudiced by want of notice; duty, duty, as established by many decisions, to sound the obligor before he parts v. RichRichIn accord accord is Martin v. due." In with his his money, as to the amount actually due." C, who B assigned to C, B on bond. B (A owed B (1873). (A ardson, 68 N. C. 255 (1873). ardson, B, assigned back to B, C assigned A on on another another bond. Later C owed A at that time already owed at has aa set-off set-off against B.) debt to to A. Held, A has C's debt had no no notice of C's who had (i886). REV. 7, 7,8 (1886). HAv. L. L. REv. Notice, 1I HARv. Without Notice, for Value Value Without Purchasefor .."Ames, Ames, Purchase HeinOnline -- 74 U. Pa. L. Rev. 230 1925-1926 ASSIGNMENT ASSIGNMENT OF OF CONTRACT CONTRACT RIGHTS RIGHTS 231 creditor, the the holder holder of of aa right, right, isis induced induced by by the the fraud fraud of of X X to to creditor, purinnocent to an assigns thereafter assign the the right right to to X, X, and and X X thereafter assigns to an innocent purassign for value, value, the thelatter latter isis not not affected affected by by the the "equities' "equities" of of the the chaser for chaser 45 The debtor is not the creditor-the first first assignor. assignor.45 The debtor is not the defrauded creditor-the defrauded of these these "equities." "equities." He He would would have have no no sure sure defense defense possessor of possessor knowledge has he if although X, the defrauder; although if he has knowledge even as against even as against X, the defrauder; of the the fraud fraud he he would would be be well well advised advised to to interplead interplead X X and and the the of defrauded creditor. creditor. In In such such an an interpleader interpleader the the latter latter could could win win defrauded as against against X, but but not not (by (by the the majority majority rule) rule) as as against against the the innoinnoas kinds other of case the in rule cent second second assignee. assignee. This This is the the rule in the case of other kinds cent of property, property, and ~d there there seems seems to to be be no sufficient sufficient reason reason for for applyapplyof different rule rule in in the the case case of of contract contract rights. They, too, too, are ing a different "property." The The reasons reasons for for protecting protecting an an innocent innocent purchaser purchaser :'property." of cases cases and and uniformity uniformity is is value are are the same same in in both classes classes of for value desirable. SUCCESSIVE ASSIGNMENTS AsSIGNMENTS BY By THE THE SAME SAME ASSIGNOR ASSIGNOR SuccEssivE Where the holder holder of a right makes two successive successive assignWhere different persons.there persons.there has been been much much conments thereof thereof to two different problems inrolved. Involved. Some of this conflict in the solution of the problems explained away. Thus, the English rule is that the flict cannot be explained thit assignee who first gives gives right against the debtor belongs to that 446 6 Most of the American notice to the debtor of his assignment. follow: this rule,47 jurisdictions refuse to follow rule,47 and hold that the right jurisdictions is in the first assignee except in two classes of cases, as follows: I. belohgs to the second assignee if the prior asi. The right belongs signment was itself itself inoperative for any reason and no such reason Evermortgage) ; Everand mortgage); (bond and "Putnam (1878), (bond 412 (1878), Eq 412 N. J. Eq 29 N.]. v. Clark, Clark, 29 "Putnam v. 96o Pac. 960 74, 44 Pac. Calif. 74. 66 Calif. Evans, 66 v. Evans, sole v. Maull, (1878) ; Ambrose v. Md. 95 (1878); 5o Md. Maull, 50 (1874), 2a9 (1874), Y. 229 57 N. Y. Guild, 57 (1884), Contra: Cutts v. Guild, stock). Contra: of stock). (certificate of (1884), (certificate assigned (bonds assigned (i879), (bonds 547 (1879), (judgment debt); Blackman v.v. Lehman, 63 Ala. 547 (judgment debt); Sutherland (18o); Sutherland 505 (1890); App. 505 Ill. App. by 40 III. Burch, 40 v. Burch, Commercial Bank v. bailee) ; Commercial by bailee); Some ('894). Some 130 (1894). E. 130 N. E. 38 N. Ill. 384, 38 151 III. v. (i8po), 151 295 (I~O), App. 295 41 Ill. App. Reeve, 41 v. Reeve, assignor ground that the assignor the ground of reconciled on the doubtless be reconciled can doubtless contra can cases contra the cases of the ownership. of ownership. indicia of did have the indicia did not have 456, F. 456, Cl. && F. Cockerell, 33 Cl. v. Cockerell, Foster v. "DearIe (823) ; Foster Russ. I1 (1823); Hall, 33 Russ. v. Hall, "Dearle v. (igig). 88o (1919). Pac. 880 179 Pac. i57, 179 Calif. 157, i8o Calif. (H. v. Paonessa, Paonessa, 180 Adamson v. 1835); Adamson L., 1835); (H. L., discussed (1924), discussed 182 (1924), S. 182 U. S. 264 U. d'Salem Salem Trust Co., 264 Finance Co., Mfrs. Finance v. Mfrs. Co. v. Trust Co. 1842). Y., 1842). (N. Y., 228 (N. Hill, 228 Schenck, 33 Hill, v. Schenck, in Muir v. (1924);; Muir 767 (1924) J. 767 L. ]. 33 YALE YALE L. in 33 HeinOnline -- 74 U. Pa. L. Rev. 231 1925-1926 a32 232 UNIVERSITY OF PENNSYLVANIA PENNSYLVANIA LAW REVIEW UNIVERSITY exists as to the second. second. This is self-explanatory. An example is exists a case in which the first assignment was a mere oral expression of gift and the second was for value. 2. The prior assi~ee's assignee's right will be extinguished and the 2. obligor will be to the subsequent assignee in case the duty of the obligor latter pays value without knowledge of of the prior assignment assignment and and in reasonable reliance on on aa document evidencing the existence in of the right in the assignor and48negligently left in the assignor's assignee. 48 prior assignee. possession by the the prior An innocent assignee for value should be protected against a prior assignee who made it possible for the assignor to perpeIf the prior assignee knew or ought to have known trate a fraud. If evidencing the existence of the of the existence of a document evidencing right in the assignor and that its possession would enable the assignor to induce a reasonably prudent person to pay value for another assignment, the law compels the prior assignee to bear the loss (unless (unless he can collect from the defrauder), defrauder), and confers the right upon the subsequent innocent assignee for value. The docnon-negotiable instrument. ument may be either a negotiable negotiable or a non-negotiable It may be a formal bond, a certificate certificate of stock, aa savings bank book, or an insurance policy. The only limitation upon its chardocument that is so customarily suracter is that it must be a document rendered upon payment or assignment that the inference inference of nonpayment and non-assignment may reasonably be drawn from its payment and non-assignment reasonably continued possession by the assignor. For the the second second assignee assignee to to be preferred, there must be an For element of "estoppel" in the broad general element of "estoppel" general use of that word. word,. Merely document with actual Merely obtaining obtaining possession of such a document knowledge of of an earlier assignment or without paying value in in knowledge reliance on it will not make the second reliance make second assignment superior to the first. is believed believed that no longer longer sound to prefer It is that it it is is no prefer the secfirst. It "Herman v. Ins. Co., Co, 218 2x8 Mass. 181, 105 ioS N. E. 45o (1914) ; "Herman v. Conn. Conn. Mut. Mut. L. L. Ins. Mass. 181, N. E. 450 (1914); Bridge same, isa E. 612 62 (i8go) Maybin v. Bridge v. v. same, 152 Mass. Mass. 343, 343, 25 25 N. N. E. (1890);; Maybin v. Kirby, Kirby, 44 Rich. Rich. Eq. 105 (S. x851). The The second assignee may Eq. 105 (S. C., C, 1851). second assignee may also also be be preferred preferred if he he made made inquiry value by of the the debtor debtor and and was was induced induced to to become become aa purchaser purchaser for tor value by the the inquiry of fact of aa prior prior assignment. assignment. See See Salem Salem fact that that the the debtor debtor had had received received no no notice notice of Trust Co. v. Mfrs. Finance Co., supra. Trust Co. v. Mfrs. Finance Co., supra. HeinOnline -- 74 U. Pa. L. Rev. 232 1925-1926 ASSIGNMENT ASSIGNMENT OF OF CONTRACT CONTRACT RIGHTS RIGHTS 233 of ond assignee aSsign~on onthe thebasis basis of the the ancient ancient distinction distinction between between "equi"equiond 49 able" and and "legal" "legal" title. title.· 9 able" It has has also also been been said said that that the the second second assignee assignee isis in in all all jurisjurisIt purchaser innocent an is he dictions preferred preferred over over the the first first ifif he is an innocent purchaser for for dictions value and and gets gets payment, payment, gets gets aa judgment, judgment, or or enters enters into into aa novanovavalue 50 In tion with with the the debtor. debtor}SO In these these cases, cases, however, however, whatever whatever right right tion the second second assignee assignee has has isis aa very very different different right right from from the the one one that that the either are rights His him. to the creditor purported to assign to him. His rights are either the creditor purported to assign "property" rights rights 51 lSI or or "judgment" "judgment" rights rights or or "novation" "novation" rights, rights, "property" determined solely solely by by the the new new transaction transaction and and not not by by the the assignassigndetermined ment. The The assignment assignment to to him him gave gave him him the the power power to to discharge discharge ment. assignfirst the of notice no the debtor, as long as the debtor had no notice of the first assignhad debtor as long the the 2 iS2 restricted not is ment and and no no longer. This power power to discharge discharge not restricted This ment to the the three three methods methods above above named. named. A sealea sealed release, release, an an accord accord to debtor, the of favor in merits the on and satisfaction, judgment the merits in the judgment a satisfaction, and award of of an arbitrator arbitrator would would all all operate operate to to discharge discharge the and an award 3 By 5III By a sealed sealed release release or by a judgment judgment or award award in in debtor. favor of the debtor, the second second assignee assignee would get no rights whatfavor ever. By By the other methods he would get the rights appropriate to the method, method, but not the right of an assignee-the assignee-the same right right had. assignor debtor that the assignor substance against the debtor in substance debtor It It should be observed that this power to discharge the debtor It is not dependent upon the second assignee's being innocent. It second assignee's is exactly the same power that the guilty creditor had prior to noof notice tice to the debtor. It depends upon the debtor's lack of of the first assignment and upon the fact that the debtor is justified in believing that the second assignment is aa valid one. If, the second is not an innocent purchaser for however, the second assignee is second whatever for whatever assignee for first assignee value, he to account to the first have to will have he will the debtor is dishe gets out of the transaction whereby the new transaction the new to "fund" to or "fund" res or no res There is no i5. There n. 15. •aSee See 33 (1923), Do 768 (1923), J.768 L. ]. YA.E L. 33 YALE which exist. can exist. "title" can which "title" n. 328 n. TRUSTS, 328 •"Aus, AllES, CASES o TRUSTS, CASES ON debtor. RabinRabinto him him in in good good faith faith by by the the debtor. He may may keep keep the the money money paid paid to a He (192o). 425 (1920). E. 425 N. E. 136 N. owitz io2, 126 Mass. 102, 235 Mass. Bank,235 People's Bank, v. People's owitz v. §433. • SWnasToN, WILLISTON, CoNTllAcrs, CONTRAMCS, §433. asthe asby the "power" by of aa "power" exercise of the exercise •"Two not the are not course, are of course, these, of of these, Two of assignee. the assignee. of .the favor of in favor signee; judgment in is aa judgment indeed, is nor, indeed, signee; nor, HeinOnline -- 74 U. Pa. L. Rev. 233 1925-1926 234 LAW REVIEW UNIVERSITY OF PENNSYLVANIA PENNSYLVANIA LAW UNIVERSITY OF charged. Indeed in some instances instances the second assignee may be be liable in damages to the first as for a tort. In this respect, if he had knowledge knowledge of the first assignment, he is in the same position as the guilty creditor creditor would be in if he should discharge the debtor after having assigned to an assignee. second If the debtor has notice of the first assignment, the second however innocent he may be. assignee has no power of discharge, however A debtor with notice must fight all other other claimants at his peril, A voluntary payinterpleader when necessary. A using a bill of interpleader prior ment to the second assignee would not affect the right of the prior assignee; nor would a judgment judgment obtained by the second assignee or a new contract in the form of a novation. Yet the second as"judgment," or "nova"novasignee would have the same "property," "property," "judgment," had if his ashave the debtor that he would tion" rights against against signment had itself been effective. These rights are not the rights of an assignee. Arthur L. Corbin. Corbin. Yale University University Law School. School. HeinOnline -- 74 U. Pa. L. Rev. 234 1925-1926