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.
The assignor can not, by assigning the benefits of his contract, relieve himself from his liability thereon.1 Hence, the mere fact of assignment can not be treated as a breach by the assignor.2 Thus if an assignee of a lease expressly assumes the obligations and liabilities arising under such lease in consideration of such assignment, and thereby makes himself personally liable, his subsequent assignment to another does not discharge such liability.3 The assent of the lessor to the assignment and his receipt of rent from the assignee do not operate as a discharge of the lessee from liability.4 If, on the other hand, there has been no assumption of personal liability, assignment of the lease relieves from liability for rent.5 Only a novation can operate as a discharge of the original party to the contract who has assigned his interest.6
111 U. S. 125, 28 L. ed. 374, a jury trial was had. No objection to the procedure was made. The case is explained as "a suit on the equity side of the court," in Chambers v. Lancaster, 160 N. Y. 342, 54 N. E. 707. In Crouch v. Miller, 141 N. Y. 495, 36 N. E. 394, there was no dispute as to the existence or amount of the debt. The chief question was as to notice to the debtor. The case was tried to a jury, and a verdict was directed on the theory that all material facts were conceded or undisputed. No question was raised as to whether the case was at law or in equity..
In Chambers v. Lancaster, 160 N. Y. 342, 54 N. E. 707, the debtor denied all liability on the original contract. The evidence established waiver by him of the breach by the assignor, and an express assent on his part to the partial assignment. The case seems to have been treated as a suit in equity. No exception to the procedure appears to have been taken.
In National Fire Ins. Co. v. Denver & Rio Grande Ry., 44 Utah 26, 137 Pac. 653, an action at law was brought by the partial assignee in his own name. No specific objection was made to such procedure. It was held that such objection was not made by a general demurrer, and that accordingly it was waived.
28 England. Brice v. Bannister, 3 Q. B. D. 569.
Georgia. Brown v. Southern Ry. Co., 140 Ga. 539, 79 S. E. 152.
Mississippi. A. K. Mclnnis Lumber Co. v. Rather, 111 Miss. 55, 71 So. 264.
Ohio. P. C. C. & St. L. Ry. Co. v. Volkert, 58 O. S. 362, 50 N. E. 924.
Tennessee. Peters v. Goetz, 136 Tenn. 257. 188 S. W. 1144. (The real question here was as to priority of notice.)
29 Usher v. Seaboard Air Line Ry., 125 Ga. 809, 54 S. E. 704.
30 Emerson-Brantingham Co. v. Lyons, 102 Kan. 733, 172 Pac. 513; Smith v. Plate Glass Co., Ill Md. 696 [memorandum opinion], 77 Atl. 264; Burditt v. Porter, 63 Vt. 296, 25 Am. St. Rep. 763, 21 Atl. 955.
In some jurisdictions, however, this rule must be qualified by the statement that the assignor becomes the surety for the assignee and ceases to be liable to the adversary party in the first instance.7