Majority
p. 583Morton vs. Naylor.
Headnote
An older not payable on its face in money, and drawn on a particular fund, is not a bill of exchange within 1IZ. S'. 757, § 6, 2i. ed. requiring a written acceptance. So held, in respect to an order by a landlord on his tenant to pay the rents accruing during a specified period; and this, though it appeared on inquiry aliunde that the rents were payable in money.Where a landlord, for value received, gave an order on his tenant to pay W. the rents accruing during a certain time, which the tenant, on' the order being presented, said he would do; and the landlord subsequently notified the tenant not to pay, but the latter disregarded the notice, and paid the order: Held, that the tenant did right, and that the landlord’s claim for the rent was extinguished.
An order of this nature operates an equitable assignment of the fund on which it is drawn, and the drawee being notified of the assignment, must pay accordingly, though there be no formal acceptance either written or verbal.
On error from the New-York common pleas. Morton sued Naylor in the court below. The declaration was in replevin, for taking, &c. certain goods. Avowry, for three months rent, $200, due by one Morgan, tenant, under a
p. 584
demise from J. Russell, who granted to the defendant. The goods were distrained on the demised premises. Pleas, third and fourth, in substance that, before Russell granted to the defendant, he for value received made his bank check of $500, payable to one Warner; and, to secure its payment, drew a written order on Morgan,' the tenant, to pay Warner the quarterly rents as they might become due during the year, covering the rent in question; which order was accepted by Morgan. That the check not being paid by the bank, and Warner requiring payment of the rent in question from Morgan, the latter accordingly paid it. Replication to said pleas, that before Morgan accepted the order on him to pay the rent, Russell revoked it. Rejoinder, denying the revocation, and concluding to the country.
The proof at the trial was, that Warner presented the order to Morgan, who verbally accepted it, telling Warner he would not pay to any one beside him. Morgan told Russell that he had accepted the order, and the latter instructed him to pay accordingly; but afterwards forbade the payment, because Warner had sued him. Morgan, however, paid the order, disregarding the countermand of Russell.
The court below directed a verdict for the defendant, to which the plaintiff’s counsel" excepted; and judgment having been rendered accordingly, the plaintiff sued out a writ of error. /
J. W. Gerard, for plaintiff in error.
A. L. Jordan, for defendant in error.
There is no color for calling the order on Morgan a bill of exchange, requiring, therefore, a written acceptance within the statute. ( 1 R. 8 . 757, 2d ed. § 6.) It is payable out of a particular fund; and, indeed, is not payable in money on its face. It is to pay rents, which may be due in wheat, fowls, or services,
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as well as money. It is an order to pay the quarterly rents; and with the oral explanation that the rent was pecuniary, it is a money order, accepted by parol, but sought to be revoked after acceptance and before payment. That could not be done. The order to Morgan was an equitable assignment of the rent in question to Warner, with notice to Morgan, who was bound to pay it according to the order, whether he had accepted or not. The cases are entirely decisive. (Israel v. Douglass, 1 H. Black. 239, 242.) Here Lord Loughborough said, in respect to an order like the one in question: “ This debt is with the consent of the parties assigned to the plaintiff, (the payee.) Douglass (the drawee) has notice of it, and assents, by which assent he .becomes liable to the plaintiff.” This case was recognized and strongly acted on in Weston v. Barker, ( 12 John. Rep. 279 , 289.) Yeates v. Groves, (1 Ves. jun. 280,) is still more nearly in point. It held that an order without acceptance was an assignment, and that the drawee having notice merely, might pay it, even as against the bankrupt assignee of the drawer. Ex parte Alderson, (1 Mad. Rep. 53,) is also exactly in point. In Lett v. Morris, (4 Sim. 607,) such an order was enforced as an assignment, though the drawee refused to accept. (See also Clark v. Mauran, 3 Paige, 373. Bradley v. Root, 5 id. 632, 641, and the cases there cited.) I refer to cases in chancery to show, that an order for value is per se an equitable assignment to the payee of the debt due from the drawee to the drawer. Our own rules at law as to enforcing such an assignment are well known. We give it the same effect as would a court of chancery.[1]
(a) (a) See Johnson v. Thayer, (5 Shepley, 401,) Legro v. Staples, (4 id. 252,) Adams v. Robinson et al. ( 1 Pick. 461 ,) Welch v. Mandeville, ( 1 Wheat. 233 ,) Mandeville v. Welch, (5 id. 277 .) In the latter case, it was said, that the rule protecting an assignee, after notice, from the acts of the assignor, does not apply to cases where the assignment is only of part of a fund. And see Robbins v. Bacon, (3 Greenl. 346,) Tierman v. Jackson, (5 Pet. R. 580.) The contrary, however, has been held in this state. (Taylor v. Bates, 5 Cowen, 376. Wheeler v. Wheeler, 9 id. 34. Pattison v. Hull, id. 747.)
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It follows, that the payment by Morgan to Warner, extinguished the rent, The distress was tortious, and the court should have directed a, verdict for the plaintiff below,
Judgment reversed.