113 Wash. 455 | Wash. | 1920
On Rehearing.
During the trial of this case, the respondent offered in evidence a letter from the Metropolitan Bank of Seattle to the appellant, enclosing a writing given by the respondent to the bank and addressed to the appellant, reading as follows:
“Please remit to the Metropolitan Bank proceeds of next boom of logs from me.”
The Department opinion (110 Wash. 437, 188 Pac. 509), decided that, if the instrument was on its face sufficient to amount to an assignment of the account to the bank, it was controlled by the negotiable
Section 3516, Rem. Code, provides that:
“A bill of exchange is an unconditional order in writing addressed by one person to another, signed by the person giving it, requiring the person to whom it is addressed to pay on demand or at a fixed or determinable future time, a sum certain in money to order or to bearer. ’ ’
In the case of Quast v. Ruggles, 72 Wash. 609, 131 Pac. 202, we held that a note, to be negotiable and to be controlled by the negotiable instruments act, must be payable to “order or bearer.” It would, therefore, appear that the order to the bank is not controlled by the negotiable instruments act.
Appellant contends that the written order to the bank amounted to an equitable assignment from the respondent to the bank of the amount sued on, and that it was not necessary to show that it had been accepted by the appellant. If it be admitted that appellant’s position in this regard is correct, yet we must reach the same general result as that reached by the department. Before this instrument will be treated as an equitable assignment, it must be shown that there was a valuable consideration for the assignment.
“An equitable assignment must be supported by a valuable consideration as a necessary and essential element.” 5 C. J. 931.
See, also: 7 Ency. Plead & Prac. 779; Perkins v. Parker, 1 Mass. 117; Brokaw v. Brokaw’s Ex’rs, 41 N. J. Eq. 215, 4 Atl. 66; Shaw v. Tonns, 20 App. Div. 39, 46 N. Y. Supp. 545; Moffatt v. Bailey, 22 App. Div. 632, 47 N. Y. Supp. 983; Tallman v. Hoey, 89 N. Y. 537; Attorney General v. Continental Life Ins. Co., 71 N. Y. 325, 27 Am. Rep. 55.
The order involved in this case does not, upon its face, show any consideration. Consequently, before it can be treated as an equitable assignment, there must be proof of the consideration therefor. The fact that the bank was not a party to this action, and that this alleged equitable assignment was introduced in evidence by the respondent, will not relieve the appellant of the duty to prove consideration for the assignment. Long before this suit was brought, the bank wrote appellant, asking it to pay the bank the amount here sued for, and enclosing therewith the original or a copy of the order given by the respondent to the bank; and the appellant, therefore, had ample notice of what it now calls an equitable assignment of the fund; and if it intended to defend on that ground, the burden was on it to prove a consideration, for there can be no proof
We concur in all other conclusions reached by the Department opinion. The judgment is affirmed.