It is sometimes said that "every assignment of a chose in action is merely an executory contract which equity considers as executed, and which the law following equity regards as conferring certain rights which the assignor is bound to respect;"22 but there is a distinction between the enforcement by equity of an agreement which the parties intended to take effect as a present transaction and an agreement which they intended to carry out in the future. It is of the essence of an assignment that the parties agree that the assignee shall immediately be the owner of the claim assigned, and shall have power to collect it without further action on the part of the assignor. Because such an agreement was not wholly effectual at law, equity gave effect to and in a sense specifically enforced the agreement of the parties, but such a case must not be confused with one where the parties make an executory agreement to assign in the future. Such an agreement is not in itself an assignment.23 Nor is an agreement to pay out of a particular fund an assignment of the fund or of any part of it to the promisee.24 "The test is, even of an equitable assignment, whether the debtor would be justified in paying the debt or the portion contracted about to the person claiming to be assignee."25 The distinction to be drawn
19 White v. Coleman, 130 Maes. 316; In re Cleary, 9 Wash. 605, 38 Pac. 79. But in Muller v. Kling, 209 N. Y. 239, 103 N. E. 138, a purchaser of a draft drawn on a foreign drawee secured by a draft in favor of the foreign drawee drawn on a debtor of the drawer was held entitled to the fund represented by the collateral draft as against an assignee for the benefit of creditors. And see Neamith v. Drum, 8 W. A 8. 9, 42 Am. Dec. 260.
20 Commonwealth v. Cummings, 155 Pa. 30, 25 Atl. 996; Lindsay v. Price, 33 Tex. 280. See also Clayton v. Fawcett's Adms., 2 Leigh, 19. In the case last cited the order had been accepted by the immediate drawee but the drawer had himself collected from the debtor. The payee sued the acceptor. The court held the acceptance in effect was only to pay when the claim was collected. The decision seems correct, but the court said also that the drawer "had a perfect right in law to revoke" the order before the drawee collected it. This seems questionable.
21 This view finds support in Spofford v. Kirk, 97 U. S. 484, 24 L. Ed. 1032; Nesmith v. Drum, 8 W. & S. 9, 42 Am. Dec. 260.
22Williams v. Ingersoll, 89 N. Y. 508, 519.
23In re Stiger, 202 Fed. 791; Notional City Bank v. Torrent, 130 Mich. 259, 89 N. W. 938; State p. Lindsay, 73 Mo. App. 473; Areata v. Long Island R. Co., 36 N. Y. App. Div. 379, 382, 55 N. Y. S. 401; Lauennan Bros. Co. v. Riehl, 156 Wis. 12, 145 N. W. 174. See also Hale v. First Nat. Bank, 50 In. 642.
24 Christmas v. Russell, 14 Wall. 69, 20 L. Ed. 762; Dillon v. Barnard, 21 Wall. 430, 22 L. Ed. 673; Trist v. Child, 21 Wall. 441, 22 L. Ed. 623; Removal Cases, 100 U. S. 457,25 L. Ed. 698; Smedley v. Speckman, 157 Fed. 815, 85 C. C. A. 179; Maier v. Freeman, 112 Gal. 8, 44 Pac. 357, 53 Am. St. Rep. 151; De Winter v. Thomas, 34 App. Cas. D. C. 80,27 L. R. A. (N. S.) 634; Kelley v. Newman, 79 111. App. 285; Stearns v. Quincy Mut. Fire Ins. Co., 124 Mass. 61, 63, 26 Am. Rep. 647; Hale v. Dranen, 76 Minn. 183, 78 N. W. 1045; Fairbanks v. Welshans, 55 Neb. 362, 75 N. W. 865; Phillips v. Hogue, 63 Neb. 192, 88 N. W. 180; Lanigan v. Bradley and Currier Co., 50 N. J. Eq. 201, 205, 24 Atl. 505; Williams v. Ingersoll, 89 N. Y. 508, 518; Addison v. Enoch, 48 N. Y. App, Div.
111, 62 N. Y. S. 613, affd., 168 N. Y. 658, 61 N. E. 1127; Holmes v. Bell, 133 N. Y. App. D. 455, 124 N. Y. S. 301, affd., 200 N. Y. 586, 94 N. E. 1094; Donovan v. Middlebrook, 95 N. Y. App. Div. 365, 88 N. Y. S. 607; Bank of New Hanover v. Williams, 79 N. C. 129; Christmas' Adm. v. Griswold, 8 Oh. St. 558; Davis v. State Nat. Bank (Tex. Civ. App.), 166 S. W. 321, 327; Hicks v. Roanoke Brick Co., 94 Va. 741, 27 S. E. 596; Feamster v. Withrow, 9 W. Va. 296; Dirimple v. State Bank, 91 Wis. 601, 66 N. W. 501. See also Wylie's Appeal, 92 Pa. 196; Evans v. Rice, 96 Va. 50, 30 S. E. 463. But see Durham v. Robertson, [18981 1 Q. B. 765, 769.
25 Donovan v. Middlebrook, 96 N. Y. App. Div. 365, 367, 88 N. Y. S. 607; citing Fairbanks v. Sargent, 117 N. Y. 320, 22 N. E. 1039, and see Trist v. Child, 21 Wall. 441,444, 22 L. Ed. 623; Randel v. Vanderbilt, 75 N. Y. App. D. 313, 318, 78 N. Y. S. 124; Davis v. State Nat. Bank (Tex. Civ. App.), 156 S. W. 321. See also Schubert v. Herzberg, 66 Mo. App. 578, and cases cited in the two preceding notes. In Hargett v. McCadden, 107 Ga. 773, is between a promise that the promisor will pay out of a particular fund and an agreement that the promisee may collect a particular fund, or part of it, and may pay himself when he has collected. Therefore a promise to an attorney that he shall have as his compensation a certain share or payment out of a fund in litigation creates a valid partial assignment if the attorney is to collect the claim and pay himself by retaining his fee.26 Whereas if the fund is to come into the hands of the client, and he is to make the payment, there is only a contract right.27
Sec. 429. Whether promises to assign or to pay out of a fund create equitable liens. Where there is only a promise to collect and pay the promisee when the collection is made, or a promise to make an assignment in the future, a claim to the fund, if allowed, must be based on the theory of an equitable lien given by the specific enforcement of a contract rather than on that of a present assignment; and to make it possible to contend that such enforcement should be given, it must first be established not only that a promise was made, but that such consideration was given for it as to fulfil the ordinary requirements of the law. A and a promise to assign in discharge of an obligation.31 On the other hand must be set the cases previously cited 32 which hold a promise to assign in the future does not amount to an assignment,33 since these cases generally involve the question whether the promisee had a right to the fund in question without regard to whether that right should properly be described as the right of an assignee or of a hen holder. In these cases, however, there was not always present consideration for the promise, and the procedure may often not have been such as to permit the assertion of an equitable right. Further, if it is true that an equitable lien arises whenever an intention is indicated to make a particular fund "a security for a debt or other obligation," it would seem that any promise for consideration to pay out of a particular fund would create an equitable lien upon the fund, since a promise to a creditor not merely to pay when the promisor receives a specific fund but to pay out of that fund, manifests clearly an intention to dedicate the fund as security for the payment of the debt. Yet a great weight of authority sustains the view that a promise to pay out of a particular fund rives no equitable right in the fund to the promisee.34