Whether it may be shown that an assignment of a particular fund or part of it was intended, though the order given to the intended assignee makes no mention of a particular fund, and in terms directs payment to be made unconditionally, is a question which has caused considerable difference of judicial opinion. Some courts hold that though a bill of exchange is not of itself an assignment, it is evidence tending to show one,
6 N. E. 462, 64 Am. Rep. 737; Curran v. little, 40 Oh. St. 397; Coursin v. Ledlie's Adm'r, 31 Pa. 606; Corbett v. Clark, 46 Wis. 403, 30 Am. Rep. 763.
1 Sec. 3, infra, Sec. 1137. See for ap plications, First Nat. Bank v. Light-ner, 74 Kans. 736, 738, 83 Pac. 69, 8 L. R. A. (N. S.) 231, 118 Am. St. Rep. 353; Shepard v. Abbott, 179 Man. 300, 60 N. E. 782.
2Shaver v. Western Union Telegraph Co., 67 N. Y. 469. An order directing the payment of fifty dollars a month until three hundred dollars had been paid, and directing that the payments should be charged to the drawer's salary account, was held not to amount to an assignment.
3 Brill v. Tuttle, 81 N. Y. 464, 467, 37 Am. Rep. 516; Crouch p. Muller, 141 N. Y. 495, 36 N. E. 394. Cf. McDonald v. Ballston Spa, 34 N. Y. Misc. 486, 70 N. Y. S. 279.
and in connection with facts indicating that such was the intent of the drawer, will give the payee a right to the indebtedness of the drawee to the drawer.4 And the fact that a check or draft is for the exact balance of the account due from the drawee to the drawer has been held to show an intent to assign the fund.4a It is obvious, however, that if evidence that the debtor owed only one sum is to be regarded as proof that the drawer of an order is requesting payment out of that sum exclusively, almost any check or bill of exchange might be shown to be an assignment. There seems no more reason to suppose that a check for the drawer's entire balance is an assignment of the whole balance than that a check for part of the balance is a partial assignment. For in the latter ease as well as the former the inference is strong that the payment was expected to be made from a particular account, but that is not enough. In both cases the check directs the bank to pay the amount of the check irrespective of the debtor's balance,5 and the bank could pay and charge the drawer, though there was no balance. In opposition to the authorities which have been cited, other cases hold that a "written instrument which is plain in its terms, cannot be changed into something else by anything that the parties said at the time of making it."6 These cases seem sound in denying that an order plainly directing payment without reference to a fund can be construed to mean anything else. The parol evidence rule forbids it. Nor is such an order evidence of an assignment but rather the contrary. It tends to prove that the amount of it was to be paid regardless of the state of accounts between the drawer and drawee. But the discussion seems generally to have been confined to an inquiry whether the order itself could be shown to amount to an assignment. For the reasons given this seems impossible. The fact, however, that an absolute order, negotiable or otherwise, has been given does not preclude the possibility that an assignment of the fund also has been made to secure the payment of the order. There is nothing in the writing to contradict such an intention. If a written assign-ent were given in connection with a check or other absolute order, it seems difficult to suppose the written assignment would not be given proper effect;7 and since an assignment need not be in writing,8 except as required by statutes,9 it seems to follow that any intent manifested by the drawer of an absolute order that a specific fund shall be assigned to secure payment of the order, would be as operative as a writing. The weight of authority sustains the position that such an intent may be shown orally.10 It was laid down by Story,11 that a bill of exchange or order which did not purport to be drawn on a particular fund became an assignment when accepted by the drawee and this statement is frequently repeated in the cases.11 It is, however, not strictly accurate. The acceptance creates a novation which is more than a mere assignment. The payee of the order acquires a new and direct legal right against the acceptor, which could always have been enforced by an action by the payee in his own name, and which is not subject to any defence which might have been set up against
4 First Nat. Bank v. Dubuque, etc., R. Co., 52 In. 378, 3 N. W. 396, 35 Am. Rep. 280; Bank of Commerce v. Bogy, 44 Mo. 13, 100 Am. Dec 247; Muth v. St. Louis Trust Co., 77 Mo. App. 403; Central Bank v. Davis (Tex. Civ. App.), 149 8. W. 290.
4a Jenness v. Wharff, 87 Me. 307, 32 Atl. 908; Muth v. St. Louis Trust Co., 77 Mo. App. 493; Hawea v. Blackwell, 107 N. C. 198, 12 S. E. 245, 22 Am. St. Rep. 870. See also Moore v. Davis, 57 Mich. 2S1, 23 N. W. 800; Gardner v. The Nat. City Bank, 39 Ohio St. 600.
5 Therefore, a letter stating that bills of exchange had been drawn against a particular consignment of goods did not make the bills an assignment. Cowperthwaite v. Sheffield, 3 N. Y. 243.
6 Lewis v. Traders' Bank, 30 Minn. 134,14 N. W. 687. To the same effect are, Watson v. Duke of Wellington, 1 Rush. A M. 902; Baer v. English, 84 Ga. 403,11 S. E. 453, 20 Am. St. Rep. 372; Hart's Assignees v. Dixon, 5 Ky. L. Rep. 669; Bush v. Foote, 58 Miss. 5, 38 Am. Rep. 310; Hutter v. Ellwan-ger, 4 Lans. 8. Cf. Reviere v. Chamb-liss, 120 Ga. 714, 717, 48 S. E. 122.
7 Thin was so held in Hove v. Stanhope State Bank, 138 Iowa, 39, 115 N. W. 476; although the Negotiable Instruments Law, in force in Iowa, provides that a check is not an assignment.
8See supra, Sec.424, infra, Sec.430.
9 See infra, Sec. 521.
10 Fourth Nat. Bank v. Yardley, 165 U. S. 634, 644, 41 L. Ed. 855, 17 S. Ct. 439; Moore v. Lowrey, 25 Iowa, 336, 95 Am. Deo. 790; Risley v. Phoenix Bank, 83 N. Y. 318, 38 Am. Rep. 421; Throop Grain Cleaner Co. v. Smith, 110 N. Y. 83, 88, 17 N. E. 671; Mo-
Daniel v. Maxwell, 12 Ore. 202, 27 Pac. 952, 28 Am. St. Rep. 740; The First Nat. Bank of Wellsburg v. Kim-berlands, 16 W. Va, 555. Where a bank book was delivered simultaneously with a cheek, and the rules of the bank required that the book must be presented in order to secure payment, there was held to be a valid assignment. Venturi v. Silvio (Ala.), 73 So. 45.
11Mandeville v. Welch, 6 Wheat. 277, 5 L. Ed. 87.
12 See eases cited in notes to the preceding section passim.
the drawer,13 unless the acceptance is conditional.14 A drawee who was indebted to the drawer for the sum named in the order for the same reason is by his acceptance discharged from further liability to the drawer of the order.15 An order by the creditor given directly to the debtor requesting him to pay a third person does not in the absence of notice to that person make him an assignee of the claim. The request is merely a revocable mandate.16 If, however, the creditor should make a contract with his debtor that the latter should pay a third person, the original obligation would thereby be discharged, and under the new contract the rights of the person to whom payment was to be made would be governed by the principle applicable to contracts for the benefit of a third person.17