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reasons of their own. That one may choose with whom he will contract is a basic principle in contract law. Hence it would seem, to begin with, that there could be no assignment by either party to the contract without the consent of the other. But it is another policy of the law that he who has an asset of any kind should be able to traffic in it if he thereby does not unduly disturb the right of any other person. And it is apparent that one may have a contractual right against another the delivery of which he may direct without unduly disturbing the contractual relationship between the contracting parties; and out of these conflicting policies has resulted the law that one may assign his rights under a contract without the consent of the other party to the contract when such transfer does not involve the personality of the assignor and assignee, as we shall hereafter notice.

Sec. 117. POWER TO ASSIGN MERE CONTRACTUAL RIGHTS. A contracting party may assign his rights under the contract when such assignment does not involve the credit, skill or other personality of the assignor. His rights to another's personal service he can never assign.

If one has a right under a contract to receive money or goods upon conditions that do not involve his credit, skill or other item of personality, he may assign such a right.

Example 74. A assigns to L his right to receive his salary from E. E must honor this assignment when he receives notice thereof from L.

In the illustration the real contract, one of service between the parties is not affected.

A right to another's services, a person can never as

sign. Thus in the above case E could not assign to another his rights to A's services.

Sec. 118. POWER TO ASSIGN CONTRACTUAL OBLIGATIONS. Generally speaking, there is no power to assign contractual obligations.

One's obligations under a contract he can not assign because he could thus make the other contracting party look to one for the rendition of obligations with whom he did not contract and perhaps, indeed did not care to

contract.

Example 75. A owes B a sum of money. A cannot assign this obligation to C without B's consent. It is true that C by contract with A may assume the payment of the debt to B, and, as we have seen, B may sue on this contract; but B need not accept C's obligation in place of A's if he does not want to.

CONTRACTUAL

Sec. 119. POWER ΤΟ ASSIGN RIGHTS WHEN COUPLED WITH PERSONAL CONFIDENCE AND LIABILITY. Contractual rights cannot be assigned if they are coupled with liabilities or involve the credit, skill or personal confidence of the assignor.

One cannot assign his rights under a contract if such rights are connected with liability or other personal element. "You have the right you anticipate from the character, credit and substance of the party with whom you contract." Humble v. Hunter, 12 Q. B. 310.

Example 76. Dunton Lumber Co. sold to K. Co. the entire output of white pine lumber for 1901, except such as it should need for its retail trade in Rumford Falls. The K. Co. were to pay within 10 days from receiving invoice. The K. Co. attempted to assign to Demarest,

but the Dunton Co. would not recognize him, and he brought suit. The court held the contract not to be assignable.160

Sec. 120. CONTRACTUAL RIGHTS TO BE ACQUIRED IN FUTURE NOT ASSIGNABLE. One may assign any right under an existing contract, but cannot assign rights under a contract not yet made.

One cannot assign to another what he has not got himself, because assignment supposes present transfer of title. But it is sufficient within this rule that the contract is actually existing, although it might be terminated by either party at any moment.

A is employed by B. He borrows money from L, and as security assigns to L his salary from B, also any salary he may make from any other employer. A's employment with B is from day to day and B could let him go at any time without liability to A. The assignment of wages to be earned under the contract with B is good, but the assignment as to other employers is ineffectual.161

Sec. 121. EFFECT OF ASSIGNMENT AS TO ASSIGNOR. The assignor of an obligation still remains responsible to the other party for the due performance of the contract. Assignment of rights divests, the assignor of such title as he had.

If one assigns obligations he still is responsible for the performance of the contract, even though the consent of the other party has been secured; but this must be understood as not referring to a case of novation or

160. Demarest v. Dunton Lumber Co., 161 Fed. 264.

161. Mulhall v. Quinn, 67 Mass. 105; Mallin v. Wenham, 209 Ill. 252.

where the other party has, instead of permitting an assignment, been a party to a novation. Thus, if one leases a building and afterwards, with or without the assent of the landlord, assigns his lease to another, and that other fails to pay the rent, the original lessee can be held.162

After assignment of a right the assignor loses his right to receive the benefits under the contract. The assignee for that purpose has a right to step into his place.

Sec. 122. THE ASSIGNEE AS THE SUCCESSOR TO THE TITLE OF THE ASSIGNOR. The assignee takes the title and right of the assignor, and is subject to all the equities and defenses between the original parties.

The theory of contract being that it is a personal relationship between two or more persons who have chosen each other, assignment of rights thereunder, without the other party's consent, is permitted, as we have seen, upon the theory that the contractual arrangement is not thereby disturbed. It follows from this, that such assignment cannot be permitted to increase the obligations of the other party thereunder. Therefore, the assignee will take the right as it actually exists, not as it may seem to be; and will take it subject to all adjustments and defenses to which the assignor would have been subject had there been no assignment.

Example 77. A has a contract of service with B, by which B pays him a monthly salary. A assigns his salary to C in security for a loan. If this salary has already been paid, though not due, or if A does not earn his salary, or if A owes B money as a set off, these defenses

162. Grommes v. St. Paul Trust Co., 147 Ill. 634.

may be had by B against C as readily as against A, provided B had done nothing by which C in taking the assignment has been misled as to the true facts.163

Thus, failure of consideration, lack of consideration, fraud, duress, undue influence or any other defense between the parties, may be made against an assignee.

If the assignment is by way of negotiation of a negotiable instrument, this reasoning does not apply, as negotiable paper was invented in part to escape this situation.

Sec. 123. EFFECT OF ASSIGNMENT AS TO OTHER PARTY (DEBTOR). Where a contract is assignable, the debtor must pay heed to the assignment and recognize the assignee when he has received notice of the assignment, but no rights are acquired against him until notice is given.

Assignment may be with the consent and knowledge of the other party to the contract, or it may be done quite independently of him. The usual practice in assignment of wages as security for a loan is an example of this. If a contract is assignable and is assigned, the debtor must recognize the assignment when it is brought to his notice. He need not, however, ever assume that the party has assigned his contract and may treat with him on the theory that there has been no assignment. Thus an assignable instrument differs again from a negotiable one. The maker of a negotiable promissory note has no right to assume that a note has not been negotiated and must therefore demand, in order to protect himself, the production of the instrument. But a promisor of a non-negotiable, though assignable, right, need not assume

163. Westfall v. Jones, 23 Barb. (N. Y.) 9.

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