Federation Sav. & L. Co. v. Schmitt ( 1927 )

VICKERY, J.

1. Where mortgagor was given credit on books of savings and loan companv for amount of mortgage, amount of which was to be paid out only when work was done on dwelling house being erected, order of mortgagor in favor of materialman drawn on loan company for part only of fund to credit of mortgagors was not such assignment of fund that suit against loan company could be predicated thereon.

2. A cause of action must be assigned as a whole, it not being permitted to split it up by assigning part to one person and part to an-. other.

3. Where building and loan company made loan on dwelling house to be constructed and after delivery of mortgage to it, mortgagors were given credit on company’s books for amount of mortgage and thereafter mortgagors, during progress of work on dwelling house, gave order on company to material-man for amount less than fund credited to them, materialman could not maintain action thereon against loan company, the order being an assignment of but part of the fund, nor was there contractual relation between ma-terialman and loan company.

4. Where loan company credited to mortgagors amount of fund to be used in construction of a dwelling house, furnishing of lumber to be used in construction of house was consideration for order on the fund so credited by mortgagor to materialman.

5. The taking of a mechanics’ lien by ma-terialman furnishing lumber for a dwelling house is an added security only and is not a discharge of the obligation.

6. Where loan company gave credit on its books to mortgagor for amount of mortgage to be paid out as dwelling house was constructed and mortgagor drew order on fund credited on loan company’s books in favor of materialman furnishing lumber for the house, in absence of acceptance of order by loan company no relation of debtor and creditor existed on which lumberman' could predicate suit against the loan company.

7. Where loan company placed to credit of mortgagor a fund to be used in constructing a dwelling house and mortgagor drew order in favor oí materialman thereon, loan company’s retention of order after presentation to it until sufficient work was done on dwelling house to warrant its payment held not such acceptance of order as to make it liable thereon.

(Sullivan, P. J. and Levine, J., concur.)

For reference to full opinion, see Omnibus Index, last page, this issue.