for the non-assignability of such contracts is that they do not survive the death of either party.61 Although the death of a party to most contracts passes all rights of action for breach of contract, and all liabilities, to his representatives, contracts of personal service are obviously not of this class. Thus, where A was employed by B to work as a farm hand for one year, and B died within the year, it is not feasible nor possible for the administrator to carry out the contract.62

This rule is even more obvious where the contract involves personal skill. If A agrees with B to paint his carriage, it is presumed B engaged A because of his skill and ability as a painter, and the services of another, however skillful, could not take the place of A.63

133. Form.-There is no particular form prescribed in which to execute an assignment. An assignment may be made orally or in writing, provided always that the assignor clearly expresses his intention to make an assignment.64

Statutes, however, frequently require an assignment to be written. In such an event if it is not in writing, it is only an equitable assignment. If suit be brought in the assignee's name, it must be in equity; if at law, it must be in the assignor's name."5 If the claim is assigned in writing, the surrender of the writing to the assignee would be the usual method. 61 Tolhurst v. Ass'n, L. R. (1902), 2 K. B. 660 (Eng.).

62 Lacy v. Getman, 119 N. Y. 109.

63 Robson v. Drummond, 2 B. & A. 303 (Eng.).

64 Row v. Dawson, 1 Ves. Sr. 331 (Eng.); Risley v. Phoenix Bank, 83 N. Y. 318.

65 Clark, Contracts (2d ed.), p. 367.

The operative words of an assignment which are generally used are "sell, assign and transfer," or "sell, assign, and set over.

134. Assignment of future earnings.-As indicated, a sum due from A to C for services rendered, may be assigned to B. The problem then arises, may C assign his future earnings to B. The cases have been divided into two classes. If there is an existing contract of employment, and the rule seems to cover any existing employment, C may assign his future. earnings as to that employment."

Thus, C is working for the A firm. To B he assigns his last week's salary. This assignment is valid. To D he assigns his next week's salary. This assignment is also valid. But if the A firm discharges C this week, or if C terminates his employment with the A firm, and begins work with another company, the assignment of next week's earnings is not valid as to any earnings due from the new company. A new assignment would be necessary, executed after he had a contract with his new employer.

The basis of the rule is that one may not assign future earnings not based upon an existing contract. Such earnings constitute a mere expectancy. This rule applies even where the assignment uses such general terms as "A hereby assigns his wages due and to fall due from any and all present and future employments.

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135. Contracts and claims non-assignable.-A and B may agree by the terms of their contract that it

66 Carter v. Nichols, 58 Vt. 553, LEADING ILLUSTRATIVE CASES.

67 Allen v. Pickett, 61 N. H. 641; Adams v. Willimantic Linen Co., 46 Conn. 320; O'Keefe v. Allen, 20 R. I. 414.

shall not be assignable. Such an agreement renders any assignment made without the consent of A and B inoperative.68

Moreover, assignments of salaries by public officers, as well as pensions, are inoperative not only by the general weight of authority, but by statutory enactments as well.69 The rule is based on motives of public policy. For instance, the validity of an assignment of a pension would defeat the purpose of granting pensions.

In general, tort rights are not assignable. If the right of action arising from the tortious act will, upon the death of the injured person, survive to his personal representatives, it is assignable; otherwise, it is not.70 Thus, a right of action for a purely personal tort, such as slander, breach of promise, assault and battery, and false imprisonment would not be assignable. The damages in such cases are based entirely upon personal suffering, and must be recovered by the injured party."

Some authorities permit an assignment of a right of action arising from a tort to property, such as trespass. There is a similar division of authorities as to the action for deceit, and as to an assignment of a judgment rendered for a tort.72

136. Partial assignments.-Inasmuch as a debtor has a right to pay his debt as a whole, he may not be subjected without his consent to separate actions by

68 See cases collected in 4 Cyclopedia Law and Procedure, p. 21.

69 Bowery Nat'l Bank v. Wilson, 122 N. Y. 478.

70 Stebbins v. Dean, 82 Mich. 385.

71 North Chicago St. Ry. Co. v. Ackley, 171 Ill. 100.

72 See cases collected in 4 Cyclopedia Law and Procedure, pp. 24-26.

different persons. If A owes B $500, B may not assign to C a claim against A for $100, to D for $200, and to E for $200. Otherwise, the burden would be on the debtor to determine the relative rights of the substituted parties.73 But B may consent to the partial assignment, and then the assignee may recover in an action at law.74

In equity, a partial assignment will be upheld if notice has been served. While B is not bound to pay a partial assignment at law, he is bound, in equity, to retain in his hands the amount represented by the partial assignment when he settles with A, the original creditor. This rule is supported by the argument that since in an action in equity both the assignor and the debtor may be joined as parties, the whole controversy can be determined in one suit."

75

137. Priority of assignments.-Where A assigns to B his claim against C, and then, later, assigns the same claim to Y, the authorities are divided on the question as to whether B's rights are superior or inferior to Y. In England, in the United States Supreme Court, and in a number of states, it is held that the assignee who first serves notice on the debtor has the prior right. Thus Y, by serving notice first, would prevail over B. On the other hand, many

states hold that the rights are determined by the priority in time of assignment, regardless of notice. Thus, in such a case, B would prevail over Y.76

73 Carter v. Nichols, 58 Vt. 553.

74 James v. Newton, 142 Mass. 366.

75 Field v. City of New York, 6 N. Y. 179; Clark, Contracts (2d ed.), p. 366.

76 Clark, Contracts (2d ed.), p. 370.

138. Assignment and negotiability distinguished. -In the case of certain contracts, like promissory notes, by the law merchant a right analogous to that of assignment arises. Thus, a promissory note is said to be negotiable. There are essential differences between assignment and negotiability, which will be noted briefly.

Negotiation means a transfer in the form and manner prescribed by the law merchant." Its effect is to transfer the legal title of the instrument by A to B, so that B may sue in his own name. Moreover, if B gives a consideration for the instrument, buys it before it falls due, and has no notice of any defenses between the maker of the instrument and A, the maker cannot defend in a suit against himself by B. Notice of the transfer to B need not be given. These features, it will be remembered, are not true of assignments, where defenses may be made, where a legal title is not transferred, and where notice is necessary.'

78

139. Assignments by statute.-Choses in action or rights arising from contracts are made assignable by statute in the several states, but the statutes are not uniform in their terms or construction. The statutes usually give the assignee the right to bring the action in his own name.

The rules applicable to assignments in equity apply largely to the cases of statutory assignments. Every right of property which was assignable in equity and

77 See subject, NEGOTIABLE INSTRUMENTS; Anson, Contracts (Huffcut's 2d ed.), §§ 306-317.

78 Hoyt v. Thompson, 5 N. Y. 320.