Andrews v. Brown

Isbell, J. (Woodward, J. dissenting). — We think we are justified in saying, that the only substantial question involved in the record of this case is, whether open accounts of sums of money due on contract, are assignable by delivery without writing, so as to vest in the transferee a right of action in his own name, by virtue of section 952 of the Code. We hold that they a¿re not; that a written assignment is there contemplated; that the true use of the word assigned, when applied to the transfer of a written instrument, implies a written assignment, unless it is controlled by some adjunct, such as by delivery, or the like. We think that this can but be apparent to any one who will take the .trouble to trace it back to the signet, the impression of which was formerly used to evidence solemn transfers, for which a written signature, as the ability to write has become more universal, has been substituted. And we think this, also, accords with the general understanding of the word thus used. Again: the legislature, in the same chapter, has provided for the transfer of demands by “indorsement thereon, or by other writing.” While still on the subject of transfering demands, occurs the language to which we are attempting to give a construction, to wit: “an open account of sums of money due on contract, may be assigned.” The question now arises, how? The answer, from the context, obtrudes, to wit: in the manner above contemplated. If any other manner had been intended, it should have been expressed. Open accounts have been made assignable so as to vest in the assignee a right of action in his own name, with reluctance. This is the latest innovation on the common law rule, that dioses in action are not generally assignable. This circumstance is, to our minds, an argument, that the legislature did not intend to make such accounts assignable by less solemnity of transfer, than other demands which have been more willingly made assignable. The ability to write is now so universal — the acknowledged superiority of written over mere oral evidence is such — the true meaning of the word assigned — the general understanding of its import [157] —the manner in which it is here used in relation to the context — the peculiar character of this species of demand — the 'frauds which might be perpetrated, and the inconvenience that would arise — all combine to forbid us from making such accounts transferable by delivery, so as to vest in the transferee a right of action in his own name, by what we can but regard as a forced construction put upon the word assigned. It will be observed, that we pay but little attention to the argument urged, that an equitable transfer of accounts, by mere delivery, has been generally recognized, which has been denominated (how correctly we shall not now stop to inquire), an assignment. We draw a distinction between the equitable right created by the transfer of such demands, as heretofore recognized, and the rights created by our statute. Judgment affirmed.