the rescission or release he cannot object. The question is analogous to that arising from a gift of property or the creation of a trust for the benefit of another. As a gift is a pure benefit to the donee there seems no reason why his assent should not be presumed, unless and until he expresses dissent. According to this view the sole beneficiary acquires a right immediately upon the making of the contract and any subsequent rescission is ineffectual. There is weighty authority in support of this view; but in most jurisdictions the distinction has not been clearly stated in the decisions between cases of sole beneficiary and cases of debtor and creditor. Most of the cases have been of the latter sort, and it has crally been laid down broadly as true of all cases that prior to the assent or acting upon the promise by the third party but not afterwards, a rescission or release is operative. In theory, however, in a case of debtor and creditor the situation is very different from that arising where the third person is a sole beneficiary."3 gen § 118. Right of Promise to Sue. It being established that the object of a contract may be a performance to be rendered to a third party, vesting such third party with a right of action, the question arises whether such contract also gives 3A constitution of the Emperor Diocletian (Codex 8, 55, 3), declared that the acceptance of the third party was not necessary, and that the promisor was bound to him ipso facto by the promise, and the beneficiary had an immediate and direct right of action. Pothier (Oblig. n. 72), in citing this provision, said that natural equity creates the obligation to third persons. His views were adopted by the compilers of the Code Napoleon, who provided in Art. 1121, that "one may contract for the benefit of a third person when that is the condition of the stipulation which one makes for himself, or a gift that one makes to another. He who has made this contract cannot revoke it, if the third person has declared his purpose to take advantage of it." Huc (Com, vii, p. 73) says that the effect of this provision is that the right of the third person arises directly and immediately from the agreement between the promisor and the promisee; that the right of the third person is in reality derived from the unilateral declaration of the will of the promisor, distinct from the contract upon which it is based, and that the only effect of his acceptance is to make this right irrevocable. a right of action to the promisee. It might be argued that he who makes a contract for the benefit of a third person is himself the real contractor, the promise being for his benefit also, and in the person of the third party performance is really made to him, and hence he should have a right of action.1 3 It is sometimes said that unless the promisee has some beneficial interest himself he cannot maintain an action on the promise. But in several cases it has been distinctly ruled that either the third party, for whose benefit the contract is made, or the promisee may sue. That the promisec should, in some cases at least, be allowed to maintain an action, seems to be necessary. Suppose, for instance, that A. sells a horse to be B., who promises as part of the consideration to pay C., the amount due him by A. for the livery of the horse. C. does not choose to enforce his right of action against B., but exacts payment from A. It is clear that A. should then have a right of action on the promise made to him by B. to pay C., because otherwise a part of the price would remain unpaid. 1 Windscheid, Pandekten, § 316. 2 Seigman r. Hoffacker, 57 Md. 325; Dimmick v. Register, 92 Ala. 458. 3 Steene v. Aylesworth, 18 Conn. 244, 253; Merriam v Pine City Lumber Co., 23 Minu. 314, 323; Tinkler v. Swaynie, 71 Ind. 562; Gunnell v. Emerson, 73 Mo. App. 291. See Churchill v. Hunt, 3 Denio, 321; 2 Greenleaf on Evi. § 109. As to the right of a municipality to sue on a contract made with it by a water company concerning the price at which water will be supplied to residents, see Washington County Water Co. v. Hagerstown, 116 Md. § 119. CHAPTER II ASSIGNMENT OF CONTRACTS Assignment of Liabilities. The debtor cannot put another person's liability in place of his own without the assent of the creditor.1 The assignee of a leasehold interest may assign the same so as to escape liability for rent thereafter accruing, but the original lessee cannot relieve himself from continued liability by any assignment." If the contract does not involve any personal skill or experience, the party bound to its performance may assign it in the sense that he can have the work done or the goods delivered by a third person, but he himself remains liable under the contract, and the other party has no right of action against the third person so employed to do the work." When by an agreement between the original parties and a third person, the latter is to perform in the place of the first promisor, there is a novation, and the original contract is extinguished. $ 120. Assignment of Debts and Choses in Action. At common law, since contracts were regarded as creating a strictly personal obligation, even a debt could not be assigned so as to give the assignee the right to sue in on his own name, except in the case of negotiable instruments. In equity, however, the right of an assignee was recognized and enforced when the circumstances of the case afforded a ground for the administrator of equitable remedies. The assignee was allowed to sue at law in the name of the assignor. 1 A man "has a right to the benefit he contemplates from the character, credit and substance of the person with whom he contracts." Humble v. Hunter, 12 Q. B. 310. 2 Moale v. Tyson, 2 H. & McH. 387, note; Donelson v. Polk, 64 Md. 504; Stewart v. Long Island R. Co., 102 N. Y. 601. 3 British Waggon Co. v. Lea, 5 Q. B. D. 149. But now, very generally by statute, and in some States independently of statute, the assignee of a chose in action for the payment of money, is entitled to sue in his own name at law. The English Judicature Act of 1873, for instance, makes any debt or legal chose in action assignable, by an absolute assignment in writing when notice is given to the debtor. "Henceforth in all courts, a debt must be regarded as a piece of property capable of legal assignment in the same sense as a bale of goods."1 Under such a statute, or independently of it, it has been held that a life insurance policy is assignable. It is but a chose in action. An account for medical services and medicine may be assigned." A man for whom a sum has been levied in the county taxes may assign the same. A vendor's lien is assignable. A widow may assign her right of dower." The right to indemnification for damage done by a foreign nation is assignable. There is no discrimination between express and implied contracts. Both are assignable when The subject of the assign for the payment of money only. 1 Fitzroy v. Case [1905], 2 K. B. 364. 2 Harrison v. McConkey, 1 Md. Ch. 34; Rittler v. Smith, 70 Md. 261; Fitzgerald v. Rawlings, 114 Md. 470. 3 Crawford v. Brooke, 4 Gill, 213. 4 Baden v. State, 1 Gill, 165. without a transfer of the land. 5 Watson v. Bane, 7 Md. 117. Rents not yet due may be assigned 6 Maccubbin v. Cromwell, 2 H. & G. 443. Alimony is not assignable. Paquine v. Suary [1909], 1 K. B. 608. 7 Plater v. Scott, 6 G. & J. 116. s Crawford v. Brooke, 4 Gill, 214. 9 Hamilton v. Rogers, 8 Md. 301; Hudson v. Warner, 2 H. & G. 415. 10 Shaffer v. Union Mining Co., 55 Md. 74. As to assignment of wages to be earned, see Mallen v. Wenham, 209 Ill. 252. 11 Onion v. Paul, 1 II. & J. 114. When the person by whom money is to become payable upon the completion of certain work accepts an order drawn on him by the workman directing payment to be made The assignment must be in writing signed by the assignor or his agent. If not, the suit must be brought in the name of the assignor.12 The owner of a claim may by parol authorize another to assign it in writing, and any number of assignments may be made.1 The assignment need not be by writing on the instrument itself. So the bequest of a single bill is a sufficient assignment.14 A blank endorsement and delivery of the instrument constitutes the party to whom it is delivered the absolute owner, and confers upon him power to fill up the blank with a full assignment to himself. 15 If the assignee is not required to sue in his own name, but only authorized to do so. He may still sue in the name of the assignor for his own use, if he prefer, except in the case of bills of exchange and promissory notes.16 Notice to debtor. The assignee should notify the debtor of the assignment. If the debtor pay the claim after assignment, but before notice thereof, he is released.18 "He is free if he has fulfilled his obligation to the original creditor without notice of any assignment; he is equally free if he fulfils it to the assignee of whose right he is first informed, not knowing either of any prior assignment by the original creditor or of any subsequent assignment by the new crediter."19 But payment by the obligor to the obligee after to an assignee, such person becomes liable to the assignee for the full amount mentioned in the assignment, upon completion of the work, and he is not entitled to deduct therefrom money afterwards paid by him to the workman. Blakistone v. German Bank, 87, Md. 302. 12 Tradesmen's Bank v. Green, 57 Md. 602. 13 Spyker v. Nydegger, 30 Md. 315. 14 Kent v. Somerville, 7 G. & J. 265. 15 Chesney v. Taylor, 3 Gill, 251. 16 Hampson v. Owens, 55 Md. 586. 17 When a fund is being administered in a Court of Equity, the filing of an assignment of it in the cause is notice to the trustee or custodian. Lambert v. Morgan, 110 Md. 1. As between assignor and assignee notice to the debtor is not necessary to the validity of the assignment. Miller v. Stockton, 64 N. J. L. 614. 18 Robinson v. Marshall, 11 Md. 251. 19 Pollock, Contracts, 210. |