Farmers' and Mechanics' Bank, 10 Vt. 141, 38 Am. Dec. 188, resembles the case at bar in every respect, and if it is to be followed, is decisive. We do not so consider it. While in that case there was a delay on the part of the plaintiff in notifying the defendant that the check received from it was forged, the question whether there had not been negligence on the part of the defendant in originally taking the check without proper inquiry, and thus of contributing to the error into which the plaintiff fell in giving the defendant credit therefor, was not raised nor discussed. The only question of that nature there considered was, whether it was the duty of the defendant to have communicated suspicions which occurred to it after the transaction. An interpretation such as the defendant gives to this case would make it conflict with the decision in Nat. Bank of North America v. Bangs, 106 Mass. 441, 8 Am. Rep. 349, in which it is cited and considered. That decision strongly sustains the result which we have reached in the case at bar.

Exceptions overruled.

BANKS AND BANKING-FORGED CHECK.-As to the rights and remedies of the several parties when a forged check has been paid, see People's Bank v. Franklin Bank, 88 Tenn. 299; 17 Am. St. Rep. 884, and particularly extended note 889-899.

LEWIS V. JEWELL.

[151 MASSACHUSETTS, 345.]

SALE-FRAUD OF VENDOR IN MISREPRESENTING QUANTITY. - If the owner of carpets covering the floors of twelve rooms, besides the hall and stairs of a dwelling-house, knowingly and falsely represents, as of his own knowledge, that they contain a certain number of yards of material, to an intending purchaser, who, in reliance upon such representation, pur. chases the carpets, the vendee is liable for his misrepresentations. The purchaser was not bound to measure the carpets for himself, or to avail himself of other opportunities of ascertaining the quantity.

ACTION of tort. The plaintiff's intestate wished to buy carpets owned by the defendant, and contained in a boardinghouse, where the plaintiff's intestate desired to use them. The defendant represented that there were about nine hundred yards; that there were within fifteen or twenty yards of that number. The purchase was made in reliance on this statement, and the carpets, being afterwards measured, were found to contain only 595 yards. The defendant asked the

court to rule that it was immaterial that he knowingly made a false representation, if the intending purchaser had an opportunity to measure the carpets for himself. This the court declined to do, and the jury returned a verdict for plaintiff.

C. R. Elder, for the defendant.

S. J. Thomas, for the plaintiff.

KNOWLTON, J. The carpets bought by the plaintiff's intestate covered four floors, consisting of twelve rooms, besides the hall and stairs, in a dwelling-house. The number of yards of material contained in them was an important element in determining their value, which might be the subject of a fraudulent representation. The representation of the defendant was not a mere estimate, but a statement purporting to be made as of her own knowledge; and there was evidence tending to show that it was known by her to be false. There was also evidence that the purchaser relied upon it; and if the testimony introduced by the plaintiff was true, the defendant was liable for fraud, unless the purchaser was bound to measure the carpets for himself, or to avail himself of his other opportunities of ascertaining the quantity.

Upon the evidence presented, it could not properly have been ruled, as matter of law, that the facts were so obvious or so easily discoverable that the plaintiff's intestate had no right to rely on the defendant's representations. In this commonwealth, and in other American states, in regard to representations by a vendor in a sale of land, it has been held that, in the absence of other fraud, a vendee to whom boundaries are pointed out has no right to rely on the vendor's statements as to quantity, but if he deems the quantity material, he should ascertain it for himself: Gordon v. Parmelee, 2 Allen, 212; Noble v. Googins, 99 Mass. 231, and cases cited; Parker v. Moulton, 114 Mass. 99; 19 Am. Rep. 315. We are of opinion that this rule should not be extended so as to include a case like the present, and that the instructions under which the questions were submitted to the jury were correct and sufficient. Exceptions overruled.

SALES-FALSE REPRESENTATIONS BY VENDOR-The quantity of chattels purchased having, by mutual mistake, been supposed to be greater than it really was, the vendee may recover the excess paid by him, or may compel the vendor to make good the deficiency: Hargous v. Albon, 3 Denio, 406; 45 Am. Dec. 481. As to what false representations of a vendor constitute fraud, see Bullitt v. Farrar, 42 Minn. 8; 18 Am. St. Rep. 485, and note.

HOLBROOK V. Payne.

[151 MASSACHUSETTS, 883.]

ASSIGNMENT. AN ORDER BY A CREDITOR directing his debtor to pay

third person a certain sum of money left with the debtor, or its officers, does not amount to an assignment of any part of the debt, and the debt may therefore be thereafter attached or subjected to trustee's process, where the amount of such order is less than the amount due from the debtor to the creditor.

T. E. Grover and F. Joy, for the plaintiff.

A. S. Hall, for the claimant.

HOLMES, J. The defendant in this action has been defaulted, and the question before us is, whether the plaintiff or the claimant, Cutting, is entitled to a certain part of the debt due from the trustee to the defendant.

There is no doubt that an order for a specific fund, identified by the order itself, may be a good assignment: Kingman v. Perkins, 105 Mass. 111. We assume in favor of the claimant that an equitable assignment to him of a part of the debt would be good as between him and the plaintiff upon trustee process: Dana v. Third Nat. Bank, 13 Allen, 445, 447; 90 Am. Dec. 216; James v. Newton, 142 Mass. 366, 374; 56 Am. Rep. 692. Our difficulty is to discover any ground for saying that the instrument relied upon constituted such an assignment.

On its face, the order given to the claimant by the defendant does not refer to a particular fund or debt, but is an ordinary negotiable draft, or unaccepted bill of exchange, drawn upon the town on the general credit of the drawer. An indorsement of the instrument by the claimant would have given the indorsee a right of action in his own name against the drawer, if the draft should be dishonored. But the fact that the order is a negotiable instrument on its face shows that it is not drawn against a particular fund. If it were drawn against a particular fund, it would not be negotiable: Wheeler v. Souther, 4 Cush. 606, 607; Harriman v. Sanborn, 43 N. H. 128.

The case is stronger for holding a check upon a bank to be an assignment, than it is for holding an ordinary draft to be A check is supposed to be drawn against a fund deposited, for which, to be sure, the bank is no more than a debtor; but a debtor on the implied term that the creditor has a right to split up the debt at will, and to require part payments in such amounts, at such times, and to such persons as he chooses.

In general, the creditor has no right to draw above the amount of his deposit, and would be guilty of a fraud if he obtained money or goods for a check knowingly so drawn. Yet the weight of authority is, that a check is not an assignment either at law or in equity: Bullard v. Randall, 1 Gray, 605; 61 Am. Dec. 433; Dana v. Third National Bank, 13 Allen, 445, 447; 90 Am. Dec. 216; Attorney-General v. Continental Life Ins. Co., 71 N. Y. 325; 27 Am. Rep. 55; First National Bank of Mount Joy v. Gish, 72 Pa. St. 13; Hopkinson v. Forster, L. R. 19 Eq. 74; Schroeder v. Central Bank of London, 24 Week. Rep. 710. See Laclede Bank v. Schuler, 120 U. S. 511, 514.

A fortiori, the same rule must hold good of an ordinary draft unaccepted, which does not import the existence of a debt from the drawee to the drawer, but leaves the mode of the drawee's reimbursement to such private arrangements as may exist between the drawer and himself. And so are the decisions: Whitney v. Eliot National Bank, 137 Mass. 351, 355, 356; 50 Am. Rep. 316; National Exchange Bank v. McLoon, 73 Me. 498, 511; Bank of Commerce v. Bogy, 44 Mo. 13; 100 Am. Dec. 247. See First National Bank of Canton v. Dubuque Southwestern R'y Co., 52 Iowa, 378; 35 Am. Rep. 280.

There is no extrinsic fact in the present case which gives the document a different effect from that which results from its tenor, if it be possible that its effect should be varied by parol: See Whitney v. Eliot National Bank, 137 Mass. 351, 355; 50 Am. Rep. 316; Griffin v. Weatherby, L. R. 3 Q. B. 753, 759; First National Bank of Canton v. Dubuque Southwestern R'y Co., 52 Iowa, 378; 35 Am. Rep. 280. The defendant had done work for the town, and his only right to draw was in respect of the price of his work. If we assume this fact to have been known to all parties concerned, still it only shows that the town was known to have means of indemnifying itself if it saw fit to pay. It does not enlarge the meaning of the draft beyond that which it bears on its face, of a general request to the town to pay. Even a reference to a fund out of which a drawee may indemnify himself will not take away the negotiable character of the draft. We may remark that the concluding words of the draft in question are "charge to account of." In some of the others, they are "charge to the account of," which is slightly more specific. But we do not see any sound distinction in favor of the latter. If the town had accepted the order, having power to do so, it would have become liable on a direct and absolute contract to the claim

ant, very likely having a right to withold an equal amount of its debt to the defendant. But mere retention of the draft was not acceptance: Overman v. Hoboken City Bank, 31 N. J. L 563.

Trustee charged. Judgment for plaintiff.

ASSIGNMENT OF PART OF A CHOSE IN ACTION. —The assignment of a part of a chose in action by a creditor, by an order drawn upon the debtor, is invalid: Note to Harris County v. Campbell, 2 Am. St. Rep. 472-475. But see Harvin v. Galluchat, 28 S. C. 211; 13 Am. St. Rep. 671, and note 674, 675.

VANUXEM V. BURR.

[151 MASSACHUSETTS. 386.]

Judgment, Merger By, on a Collateral SECURITY. — If the maker of a promissory note agrees to procure an indorser thereof, and fails to do so, and an action is brought against him upon this agreement, and a judg. ment recovered in which the damages are assessed at a sum equal to the amount due on the note, such judgment, remaining unsatisfied, will not preclude a recovery on the note for the amount thereof.

Judgment, MERGER BY. — IF A PERSON GIVES Two CONTRACTS, each constitutes a cause of action upon which judgment may be recovered against him, though the satisfaction of one of the judgments may operate as a satisfaction of the other.

L. D. Brandeis and W. H. Dunbar, for the plaintiffs.

J. H. Young, for the defendant.

HOLMES, J. This is an action upon a promissory note made by the defendant. The only defense is, that in another action upon a contract to procure the defendant's mother's indorsement to this note and to two others, the plaintiffs since the present suit was brought have recovered judgment against the defendant for damages assessed by agreement at a sum equal to the amount due on the three notes. If this judgment is not a bar, it is admitted that the plaintiffs are entitled to

recover.

The two contracts were both in existence at the same time. They were distinct from each other in form, as appears from the statement of them. They were also distinct in substance. Supposing that the defendant could do no more to bind himself personally to pay the money to the plaintiffs than he did by making the note, still his promise to get the security of an indorser affected other things besides his personal payment or his personal obligation to pay. Its performance or breach