such a case is indeed in legal contemplation rendered by the original obligor, who is still the party liable if the performance is in any respect incorrect. In considering whether the duty of an obligor can be performed by another, the same question arises when the obligor dies as when he attempts an assignment in his life time. Death discharges personal obligations because in their nature they are incapable of fulfillment by an executor.27 So under an attempted assignment inter vivos delegation of the performance of such obligations is ineffectual. Any obligation either of a master or servant where the work involves a personal relation, is of this character. 28 And so it is where one contracts to give a home and support to a relative, 29 or where work of any kind for which a contractor is bound is of a sort requiring peculiar personal skill,30 or where professional services are contracted for.31 Nor can one who has undertaken to carry on a farm for another on shares, 32 or who has undertaken to select public land for purchase on shares, 33 or who has contracted to sell successive crops of hemp of his own raising, 34 or to plant and care for an orchard, 35 or who in

27 See infra, § 1940.

28 See cases of such contracts where one party or the other has died, infra, §§ 1940 et seq. See also cases in the following section.

29 Rollins v. Riley, 44 N. H. 9; Epperson v. Epperson, 108 Va. 471, 62 S. E. 344. See also People's Trust Co. v. Weidinger, 73 N. J. L. 433, 64 Atl. 179; In re Shearn's Est., 38 Utah, 492, 114 Pac. 131, 33 L. R. A. (N. S.) 347.

30 Where a promisor engaged with one who bought his abstract business to turn over to him all future orders for abstracts and the buyer afterwards sold out the business to a corporation, the latter could not require that orders for abstracts received by the original owner of the business should be turned over to it. Linn County Abstract Co. v. Beechley, 124 Ia. 146, 99 N. W. 702. So where a contract for part of a building requires professional or artistic taste, the duty cannot be delegated.

Swarts v. Narragansett Elec., etc., Co., 26 R. I. 388, 436, 59 Atl. 77; Johnson v. Vickers, 139 Wis. 145, 120 N. W. 837, 131 Am. St. Rep. 1046, 21 L. R. A. (N.S.) 359.

31 Taylor v. Black Diamond Min. Co., 86 Cal. 589, 25 Pac. 51; Sloan v. Williams, 138 Ill. 43, 27 N. E. 531; Hilton v. Crooker, 30 Neb. 707, 47 N. W. 3; Deaton v. Lawson, 40 Wash. 486, 82 Pac. 879, 2 L. R. A. (N. S.) 392, 111 Am. St. Rep. 922; Poling v. Condon-Lake, etc., Co., 55 W. Va. 529, 47 S. E. 279.

32 Fitch v. Brockmon, 3 Cal. 348; Randall v. Chubb, 46 Mich. 311, 9 N. W. 429, 41 Am. Rep. 165; Lewis v. Sheldon, 103 Mich. 102, 61 N. W. 269.

33 Hudson v. Farris, 30 Tex. 574. 34 Shultz v. Johnson, 5 B. Mon. 497. Compare La Rue v. Groezinger, 84 Cal. 281, 24 Pac. 42.

35 Edison v. Babka, 111 Mich. 235, 69 N. W. 499.

37

38

return for a promised commission has undertaken to assist in the sale of land,36 or who is a party to a contract which provides for the carrying on by the parties of their respective mercantile business in conjunction, delegate the performance of his duty. The duty to make a warranty deed, or a promissory note, 39 cannot be performed by any one but the contractor; nor the duties involved in a contract for the exclusive agency to sell certain goods, 40 or in a contract to place advertising and supervise the advertising matter "as to style and contents,"41 or to do the printing for a county,42 or to manufacture a special class of goods of high quality—especially when the manufacturer's obligations limit his right to manufacture for other dealers, or to act as a depositary of funds of the other party and use them in certain ways, 44 or to perform other duties personal in their character. 45

43

If the reason why a right

38 McGuire v. Brown, 114 Va. 235, 76 S. E. 295.

37 Moore v. Thompson, 93 Mo. App. 336, 67 S. W. 680. See also: Nassau Hotel Co. v. Barnett & Barse Corp., 162 N. Y. App. D. 381, 147 N. Y. S. 283.

38 Steiner v. Zwickey, 41 Minn. 448, 43 N. W. 376; Smith v. Pitts, 57 Tex. Civ. App. 97, 122 S. W. 46.

39 Rappleye v. Racine Seeder Co., 79 Ia. 220, 44 N. W. 363, 7 L. R. A. 139.

40 Bancroft v. Scribner, 72 Fed. 988, 21 C. C. A. 352, 44 U. S. App. 480; Central Brass & Stamping Co. v. Stuber, 220 Fed. 909, 136 C. C. A. 475; Rappleye v. Racine Seeder Co., 79. Ia. 220, 44 N. W. 363, 7 L. R. A. 139; Detroit Postage Stamp Service Co. v. Schermack, 179 Mich. 266, 146 N. W. 144, Ann. Cas. 1915 D. 287; Standard Sewing Mach. Co. v. Smith, 51 Mont. 245, 152 Pac. 38; Lord v. Wapato Irrig. Co., 81 Wash. 501, 142 Pac. 1172.

41 Eastern Advertising Company v. McGaw, 89 Md. 72, 42 Atl. 923.

42 Campbell v. Board of Commis

may not be assigned or duty

sioners, 64 Kans. 376, 67 Pac. 866. Cf. Browne v. Jno P. Sharkey Co., 58 Ore. 480, 115 Pac. 156, where a contract to "print and furnish" advertising booklets was held assignable by the printer.

43 Dr. Jaeger's Co. v. Walker, 77 L. T. (N. S.) 180; Schlessinger v. Forest Products Co., 78 N. J. L. 637, 76 Atl. 1024, 30 L. R. A. (N. S.) 347, 138 Am. St. Rep. 627. See also Walker Electric Co. v. New York Shipbuilding Co., 241 Fed. 569, 154 C. C. A. 345. But even in such a case the contractor is not necessarily bound to manufacture all parts of the goods. Whitcomb v. Shultz, 215 Fed. 75, 131 C. C. A. 383.

44 Marquette v. Wilkinson, 119 Mich. 413, 78 N. W. 474, 43 L. R. A. 840. · See also New York Bank Note Co. v. Hamilton, etc., Printing Co., 180 N. Y. 280, 73 N. E. 48.

45 Thus in Arkansas Valley Smelting Co. v. Belden Mining Co., 127 U. S. 379, 8 S. Ct. 1309, 32 L. Ed. 246, the assignor had undertaken to receive and assay the ore which was subject to the contract.

delegated is not one of public policy, assent to the assignment by the other party to the contract is sufficient to make the assignment or delegation effectual.46 Such assent is often called waiver, but it is rather the acceptance of an offer to/ form a novation, discharging the original contract and substituting a new one in its place. 47/ A duty which is in its nature personal cannot be delegated by an assignment even to a corporation or partnership with changed membership which carries on a business substantially in the same way in which it was carried on previously.48

§ 412. Assignment of bilateral contracts.

Every bilateral contract while still executory on both sides involves both rights and duties for each party. As has been seen in the preceding section, duties under a contract cannot in any true sense be assigned. It follows therefore that no bilateral contract still executory on both sides can be assigned in such a sense as to substitute fully the assignee in the place of the assignor. What can be done is: (1) A novation may be made eliminating one of the parties to the original contract and substituting another in his stead; but this requires the assent of all three parties to the transaction.49 (2) Either party to the contract, without the assent of the other, may assign such rights as have accrued to him or are expected to accrue to him under the contract, unless they are personal or the assignment is forbidden by the contract or by public policy. An assignment of this sort is in effect an assignment of a unilateral right.50 Thus assignment of money to become due

46 Cleveland, etc., R. Co. v. Wood, 189 Ill. 352, 354, 59 N. E. 619; Weathershogg v. Commissioners, 158 Ind. 14, 62 N. E. 477; Moffitt v. Phenix Ins. Co., 11 Ind. App. 233, 38 N. E. 835; Pulaski Stave Co. v. Miller's Creek Lumber Co., 138 Ky. 372, 128 S. W. 96; Hoag v. Reichert, 142 Ky. 298, 134 S. W. 191; Detroit Postage Stamp Service Co. v. Schermack, 179 Mich. 266, 146 N. W. 144; Harlow v. Oregonian Pub. Co., 53 Ore. 272, 100 Pac. 7; National Mutual Aid Soc. v. Lupold, 101 Pa. 111.

47 Hoag v. Reichert, 142 Ky. 298, 134 S. W. 191; Detroit Postage Stamp Service Co. v. Schermack, 179 Mich. 266, 146 N. W. 144.

48 Kemp v. Baerselman, [1906] 2 K. B. 604; Moore v. Thompson, 93 Mo. App. 336, 67 S. W. 680; New York Bank Note Co. v. Hamilton, etc., Printing Co., 180 N. Y. 280, 73 N. E. 48; and see supra, § 316.

49 As to how far assent of all parties is necessary in novations, see infra, §§ 1870, 1871.

50 See infra, § 413.

"And asign

under a building contract is frequently made.51 (3) Either party may make such an assignment of rights and also contract with the assignee that the latter shall perform the duties under the contract which bind the assignor, if they are of a kind which can be delegated. It is no doubt bargains of this last character which are commonly called assignments of bilateral contracts, and perhaps no better single word can be found though so far as it implies that the original obligor is freed from his liability, it is misleading. There is an assignment of rights, but a mere delegation of duties; and inquiry must be separately made as to whether the right may be assigned, and whether performance of the duties may be delegated The assignor remains bound to perform the duties, 52 and the

ment of money due or to become due under an executory contract is not an assignment of the contract, and the assignee is not bound to perform it." Lunt v. Lorscheider, 285 Ill. 589, 121 N. E. 237, 239.

51 Butler v. San Francisco Gas & Elec. Co., 168 Cal. 32, 141 Pac. 818; Daugherty v. Gouff, 23 Neb. 105, 36 N. W. 351; Stott v. Franey, 20 Ore. 410, 26 Pac. 271; Philadelphia v. Lockhardt, 73 Pa. 211; Smith v. Hubbard, 85 Tenn. 306, 2 S. W. 569; Iaege v. Bossieux, 15 Gratt. 83, 76 Am. Dec. 189; Rockwell v. Daniels, 4 Wis. 432. So in a contract for the publication of an advertisement. American Lithographic Co. v. Ziegler, 216 Mass. 287, 103 N. E. 909. See also Leonard v. Farrington, 124 Minn. 160, 144 N. W. 763.

to make and deliver to the former, for a specified price, certain dies to be used in the manufacture of lanterns. Kelly subsequently assigned the contract to the plaintiff corporation, which brought action to recover damages for the failure of the defendants to furnish the dies. Earle, C. J., in delivering the opinion of the court said (at page 216): "After the assignment Kelly had no interest in the contract, and the defendant owed him no duty and could come under no obligation to him for damages on account of a breach of the contract by it. There is no doubt that Kelly could assign this contract as he could have assigned any other chose in action, and by the assignment the assignee became entitled to all the benefits of the contract. Devlin v. Mayor, 63 N. Y. 8, 17. The contract was not purely personal in the sense that Kelly was bound to perform in person, as his only obligation was to pay for the dies when delivered, and that obligation could be discharged by any one. could not, however, by the assignment absolve himself from all obligations under the contract. The obligations of the contract still rested upon him, and resort could still be made to him for the payment of the dies in

He

assignee is under no liability to the other party to the contract." If performance is not only delegated to the assignee, but a promise exacted from him that he will perform the delegated duties, the right of the other party to the contract to take advantage of this promise involves substantially the same question as any case where an obligation of a promisee to a third person is assumed by a promisor. But even in jurisdictions where it has not as yet been broadly held that such an assumption of an obligation gives a creditor a direct right against the assuming party, it seems probable that in equity the obligation undertaken by the assignee of the contract may be enforced by the non-assigning party to the original contract.55 If the assignee does not expressly assume the obligations of the assignor it becomes a question of construction whether he impliedly promises to perform the delegated duties. It is doubtless possible for a party to a bilateral contract to assign only the rights that will accrue to him under the contract without delegating the duties. If he clearly

case the assignee did not pay for them when tendered to it. After the assignment of the contract to the plaintiff the defendant's obligation to perform still remained, and that obligation was due to the plaintiff." So in Clement v. Philadelphia, 137 Pa. 328, 334, 20 Atl. 1000, 21 Am. St. Rep. 876, the court said that in spite of an assignment by the contractor C, "the city could require C to complete the work according to his contract." See also as illustrating the continuing liability of the assignor, Oak Grove Const. Co. v. Jefferson County, 219 Fed. 858, 135 C. C. A. 528; Anderson v. DeUrioste, 96 Cal. 404, 31 Pac. 266; Crane v. Kildorf, 91 Ill. 567; Brassel v. Troxel, 68 Ill. App. 131; Hofman v. Chicago League Ball Club, 195 Ill. App. 249; Martin v. Orndorff, 22 Ia. 504; Pike v. Waltham, 168 Mass. 581, 47 N. E. 437; Pioneer Loan & Land Co. v. Cowden, 128 Minn. 307, 150 N. W. 903; Currier v. Taylor, 19 N. H. 189; Liberty Wall Paper Co. v. Stoner Wall

Paper Mfg. Co., 59 N. Y. App. D. 353, 69 N. Y. S. 355, aff'd 170 N. Y. 582, 63 N. E. 1119; Breakstone v. Buffalo Foundry Co., 167 N. Y. App. D. 62, 152 N. Y. S. 394, and see cases in the preceding section.

53 Gross v. Thornson's Est., 286 Ill. 185, 121 N. E. 600; A. S. Cameron Steam Pump Works v. Lubbock, etc., Co. (Tex. Civ. App.), 167 S. W. 256. 54 See supra, §§ 361, 381.

55 This has been so held in England: Mangles v. Dixon, 3 H. L. C. 702. In the United States, also, the law allows recovery. Smith v. Rogers, 14 Ind. 224; Smith v. Flack, 95 Ind. 116; Wiggins Ferry Co. v. Chicago & A. R. Co., 73 Mo. 389, 39 Am. Rep. 519; Bach v. Boston, etc., Mining Co., 16 Mont. 467, 41 Pac. 75; Union Pac. R. Co. v. Douglas County Bank, 42 Neb. 469, 60 N. W. 886; Atlantic, etc., R. Co. v. Atlantic, etc., Co., 147 N. C. 368, 61 S. E. 185, 23 L. R. A. (N. S.) 223, 125 Am. St. Rep. 550.