This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
Equitable relief is not given, however, if the sole ground therefor is that a partial assignment of a legal claim has been made.18 This view is sometimes entertained on the theory that the legal remedy of an action in the name of the assignor is adequate;19 and sometimes on the theory that partial assignment is not recognized in equity.20 The right of the partial assignee to sue in equity may depend, in part, on whether the debtor denies the existence or amount of the debt; whether he does not deny the debt, but does not seek relief in equity, or whether he admits the debt and seeks relief in equity. If the debtor denies the existence or amount of the obligation, the enforcement of the right of the partial assignee in equity will deprive the debtor of a trial by a jury at law.21 If the debtor does not deny the existence or amount of the debt on the one hand, or assent to relief in equity on the other,22 as where he has paid the entire debt to the assignor with knowledge of the partial assignment,23 equity will grant relief. If the debtor does not deny the existence or extent of his liability, and is not a party to the dispute over the division of the funds, equity may give relief.24 If the debtor assents to the proceeding in equity and asks the court to determine the rights of the claimants, no objection can be made to the enforcement of partial assignment in equity.25 Under some codes of procedure the partial assignee may be heard in a proceeding in which the debtor and the assignor are parties. Under such procedure the objections which existed to partial assignment at common law, no longer exist; and such a proceeding affords complete relief.26 There has been some difference of opinion as to whether such a proceeding was to be treated as an action at law or a suit in equity.27 If the necessary parties are brought in, and the debtor is given a jury trial on the question of his original liability, further discussion as to the name to be given to such a proceeding, or as to the class of remedies formerly given under an obsolete classification, which it most nearly resembles, may be interesting but not profitable.
11 United States. Addison v. Cox, L. R. 8 Ch. 76; Trist v. Child, 88 U. S. (21 Wall.) 441, 22 L. ed. 623; The Emn-bank, 72 Fed. 610; Dulles v. H. D. Crip-pen Mfg. Co., 156 Fed. 706; In re Mac-auley, 158 Fed. 322.
California. Grain v. Aldrich, 38 Cal. 514, 99 Am. Dec. 423.
Georgia. Rivers v. Wright, 117 Ga. 81, 43 S. E. 499.
Illinois. Warren v. Bank, 149 Ill. 9, 25 L. R. A. 746, 38 N. E. 122.
Minnesota. Dean v. Ry., 53 Minn. 604, 55 N. W. 628.
Nebraska. Guthrie v. Treat, 66 Neb. 415, 103 Am. St. Rep. 718, 92 N. W. 595.
New Jersey. Lanigan v. Bradley, etc., Co., 50 N. J. Eq. 201, 24 Atl. 505; Co-gan v. Conover Mfg. Co., 69 N. J. Eq. 809, 115 Am. St. Rep. 629, 64 Atl. 973.
New York. Fairbanks v. Sargent, 117 N. Y. 320, 6 L. R. A. 475, 22 N. E. 1039; Chambers v. Lancaster, 160 N. Y. 342, 54 N. E. 707.
Ohio. Pittsburg, etc., Ry. v. Volkert,
58 O. S. 362, 50 N. E. 924; Robbins v. Klein, 60 O. S. 199, 54 N. E. 94.
Oregon. McDaniel v. Maxwell, 21 Or. 202, 28 Am. St. Rep. 740, 27 Pac. 952.
Texas. Harris County v. Campbell, 68 Tex. 22, 2 Am. St. Rep. 467, 3 S. W. 243.
12 Pittsburg, etc., Ry. v. Volkert, 58 O. S. 362, 50 N. E. 924.
13 Fairbanks v. Sargent, 117 N. Y. 320, 6 L. R. A. 475, 22 N. E. 1039.
14 Warren v. Bank, 149 111. 9, 25 L. R. A. 746, 38 N. E. 122; Robbins v. Klein, 60 O. S. 199, 54 N. E. 94; McDaniel v. Maxwell, 21 Or. 202, 28 Am. St. Rep. 740, 27 Pac. 952.
15 Avery v. Popper, 92 Tex. 337, 71 Am. St. Rep. 849, 48 S. W. 572.
16 Guthrie v. Treat, 66 Neb. 415, 103 Am. St. Rep. 718, 92 N. W. 595.
17 Fourth Street Bank v. Yardley, 165 U. S. 634, 41 L. ed. 855.
18Gaugler v. Chicago, Milwaukee & St. Paul Ry., 197 Fed. 79; Home Ins.
Co. v. Ry., 19 Colo. 46, 34 Pac. 281 (failure to allege any special grounds for relief in equity); Burnett v. Crandall, 03 Mo. 410; Hopkins v. Washington County, 56 Neb. 596; 77 N. W. 53; (failure to allege special facts requiring equitable relief; action though under the code, treated as an action at law by the partial assignee).
19Gaugler v. Chicago, Milwaukee & St. Paul Ry., 197 Fed. 79.
21Gaugler v. Chicago, Milwaukee & St. Paul Ry., 197 Fed. 79.
22 Moody v. Kyle, 34 Miss. 506.
23 Hutchinson v. Simon, 57 Miss. 628; Field v. New York, 6 N. Y. 179, 57 Am. Dec. 435; Dickerson v. Spokane, 26 Wash. 292, 66 Pac. 381.
24 Clark v. Gillespie, 70 Tex. 513, 8 S. W. 121.
25 James v. Newton, 142 Mass. 366, 56 Am. Rep. 692, 8 N. E. 122.
26 Delaware County v. Diebold Safe and Lock Co., 133 U. S. 473, 33 L. ed. 674 (under Indiana code); Western, etc., Ry. v. Union Investment Co., 128 Ga. 74, 57 S. E. 100; Schilling v. Mullen, 55 Minn. 122, 43 Am. St. Rep. 475. 56 N. W. 586.
27 In Risley v. Phenix Bank, 83 N. Y. 318, 38 Am. Rep. 421, which was affirmed in Phoenix Bank v. Rialey,
According to the weight of authority, if due notice of a partial assignment has been given to the debtor, the assignment is complete; and the debtor can not discharge his liability to the assignee by paying the entire amount of the debt to the original creditor.28 The debtor can not, however, as against the creditor, withhold the amount named in a partial assignment which the debtor has not paid and which he has not accepted in writing.29 In some jurisdictions it seems to be held that an order does not operate as an assignment until it has been accepted by the debtor.30