Bush, Redwood & Co. v. Foote, 58 Miss. 5

Bush, Redwood & Co. v. Foote

58 Miss. 5 | Miss. | 1880

Campbell, J.,

delivered the opinion of the court.

This court is committed to the doctrine that a valid equita*12ble assignment may be made of part of a- debt, regardless of the assent or wishes of the debtor (Hutchinson v. Simon, 57 Miss. 628), and that anything which clearly manifests the intention of the creditor to make a specific appropriation of a particular thing to a particular purpose, and a willingness on the part of the transferee to accept. such appropriation, may take effect as an equitable assignment. Pass v. McRae, 36 Miss. 143.

It is well settled that an order' drawn on a particular fund is operative as an assignment of the fund, and will make the drawee equitably answerable to the payee for a failure to comply with the order ; and it is equally well settled bj’’ the great-weight of authority in England and America that “ a bill or-draft payable generally, and not specifying or referring to any-particular fund, does not operate ás an equitable assignment.” 2 White & Tudor Ld. Cas., pt. 2, p. 1650, and cases cited in; the comments on the leading case, Ryall v. Rowles.

The distinction is between an order and a bill of exchange.. An order payable out of a designated fund is a specific appropriation of that fund, and vests in the payee a right to the particular thing thus appropriated, which will be made-effective, as against the thing, by treating the person on whom the order is drawn as a holder of what is so specifically appropriated for him in whom it has been vested by the order.

A bill of exchauge confers no such rights and has no such' effect. It is payable generally, absolutely, and at all events^ It does not appropriate any particular .thing, to the payee. The idea of a transfer or assignment to the payee of an interest in a particular fund does not obtain in reference to a bill of exchange. It has a distinctive character, and is attended by certain legal incidents. If accepted by the drawee, he is-bound by virtue of his acceptance, and not upon the ground of an assignment of so much money in his hands belonging to the drawer. An order operates as an assignment without acceptance by the drawee. A bill of exchange does not operate as an assignment, even after it has been accepted.

*13We have carefully considered all the cases and text-books -cited by counsel in this case, and many others, and among them all not one, as we think, maintains-the case made by the bill of complainants. The case of Corser v. Craig, 1 Wash. C. Ct. 424, was not a contract between the payee and the drawee, and Judge Washington expressly said that no mischief could result from holding a bill of exchange to be a transfer of the money drawn for; because, if the drawee, after refusal to .accept, should afterwards pay the money to the drawer, the payee not having notified him that he would hold him responsible for the money drawn for as having been assigned, .the payment would discharge the drawee. So that, according to' the opinion of the court in that case, the bill of exchange would operate as an assignment of the money in the hands of ■the drawee, or not, as the payee might give notice to the •drawee that he considered it an assignment and would hold him responsible accordingly, or should fail to do this. In •other words, whether a bill of exchange is an assignment, or not, depends on whether the payee so considers and claims. If this strange doctrine could be sanctioned, it would not maintain the case of complainants here ; -for, instead of claiming the bill of exchange as an assignment, and notifying the ■drawee that he would be held answerable for the sum of ■money drawn for as having been assigned to them, the complainants, when the drawee refused to accept the bill, instead of asserting any right, solicited from the drawee a promise to notify them when he went to make a settlement with the drawer of the bill, so that they might protect their rights as against him, and contented themselves with the silence of the drawee as to this request, and the inference they drew that he would comply with it; and a part of the complaint against the drawee is, that he did not notify complainants of the settlement he was about to make with the drawer, so that they might intercept the money in the hands of the drawee. This part of the bill is inconsistent with the alleged assignment; for if the bill of exchange was an assignment of its amount, the right of complainants as payees was secure against the drawee *14having notice of it, and they had no need of notice of any settlement between the drawee and drawer, which could not. affect them injuriously.

The case of Wheatley v. Strobe, 12 Cal. 92, differs from, the case at bar in the fact that the drawee had assented to the-appropriation by verbally accepting the bill and promising to-pay it. It is true that the court held that he was not bound, by this acceptance, because a statute required it to’ be in-writing, and the decision was based on the proposition that a. bill of exchange is an assignment of the money drawn for, as regards the drawee, even though he refuses to accept it; but it is not probable that, in the face of a statute requiring acceptance to be in writing, the court would have held the drawee bound as though he had accepted in writing, but for his assent to the assignment. The effect of the decision is-to make acceptance unnecessary in any case where the drawee is in funds, and to make a bill of exchange in itself an assignment of its amount— a doctrine unsustained by authority and condemned by an imposing array of authorities. It may be-justly remarked that the cases cited in the opinion referred to,, except that in 1 Wash. C. Ct., were upon orders on designated funds, and, therefore, do not sustain that opinion,, which wholly fails to advert to the obvious difference between orders and bills of exchange, and thus confounds totally distinct things. -We cannot accept it as a correct exposition of the law.

After diligent search for a case in which the drawee who refused to accept the bill of exchange, or in any way to recognize any obligation as imposed on him by it, and who after-wards paid his indebtedness to the drawer or to his order, has been held liable to the payee of the bill, we have not found it,, and believe such a case does not exist. We are not willing to-make such a precedent.

The case made by the bill not being sufficient to maintain it, it is useless to consider the question of practice presented by the assignment of errors.

Decree affirmed.