delegates the duties as well as assigns the rights it seems a reasonable construction of the bargain that the assignee impliedly undertakes the performance of the duties. 56, 57

§ 413. What contractual rights may be assigned.

Not all rights under contracts may be assigned. The difficulty standing in the way may be either: (1) that the nature of the right is defined or limited by the personality of the original promisee or, (2), that public policy forbids assignment of the right. The first difficulty is illustrated by rights to have services rendered to the promisee which would vary in character if performance were rendered to any one else. A promise to serve B as a valet can only be performed to B. If B were allowed to assign his right to C, and C, whether called the agent of B or not, were permitted to demand that A should serve him, a new obligation would be created differing in substance from that which the obligor undertook. And the same is true of every contract of service involving a personal relation.58 So the promisee under a contract to support him for life, cannot effectively assign his right.59 Nor can one who has a right to free tuition at a school or college.60 A contract by a painter to paint a portrait of A cannot be assigned by A to B so as to change the obligation to one binding the painter to paint B; though it would be possible for A to assign to B the right to have the picture of A when painted by the artist. The question of assigning rights of a personal character inter vivos is entirely similar to the question presented when the

56, 57 See cases cited in the preceding note, also Columbia Water Power Co. v. Columbia, 5 S. C. 225, 234. In Bimrose v. Matthews, 78 Wash. 32, 138 Pac. 319, an assignee of the vendor was held not to assume the vendor's obligations to convey a perfect title, etc., though the contract of sale provided that it should bind the assigns of the parties and the assignment set over all of the vendor's "right, title, and interest in and to" the contract.

58 Bothick's Adm. v. Purdy, 3 Mo.

82 (reprint, p. 60), American Smelting, etc., Co. v. Bunker Hill, etc., Co., 248 Fed. 172, 184; Board of Education v. State Board, 81 N. J. L. 211, 81 Atl. 163; Glazer v. Borough of Flemington, 85 N. J. L. 384, 91 Atl. 1068. See also infra, § 421.

59 Merchants' Nat. Bank v. Crist, 140 Ia. 308, 316, 118 N. W. 394, 23 L. R. A. (N. S.) 526, 132 Am. St. Rep. 267.

60 Butts v. McMurry, 74 Mo. App.

526.

61

66

67

assignment is due to operation of law on the death of the obligor. By the terms of a contract also the duration of a right may be limited to the period of its exercise by the original promisee.62/But to preclude the assignment of contractual rights not so limited, it must appear that a personal relation is involved in the nature of the rights themselves. The commonest type of right subject to assignment is one for the payment of money; 64 and such an assignment is permissible not only as against a principal debtor, but as against a guarantor.65 A right to buy goods, or land, or the privilege Minn. 383, 104 N. W. 236; Alden v. George W. Frank Imp. Co., 57 Neb. 67, 77 N. W. 369; Provencher v. Brooks, 64 N. H. 479, 13 Atl. 641; Hofferberth v. Duckett, 175 N. Y. App. D. 480, 162 N. Y. S. 167; Anniston Nat. Bank v. Durham School Comm., 121 N. C. 107, 28 S. E. 134; Browne v. Jno. P. Sharkey Co., 58 Ore. 480, 115 Pac. 156; Galey v. Mellon, 172 Pa. 443, 33 Atl. 560; Robinson v. McKenna, 21 R. I. 117, 42 Atl. 510, 79 Am. St. Rep. 793; Parsons v. Baltimore Building Assoc., 44 W. Va. 335, 29 S. E. 999, 67 Am. St. Rep. 769. Many other cases might be cited.

61 King v. West Coast Grocery Co., 72 Wash. 132, 129 Pac. 1081. See infra, §§ 1940 et seq.

62 Thus the contract of a railroad to deliver coal on a switch as long as the purchaser continued in business is not assignable by him. Frankfort, etc., Ry. Co. v. Jackson, 153 Ky. 534, 156 S. W. 103.

63 Horst v. Roehm, 84 Fed. 565; Roehm v. Horst, 91 Fed. 345, 33 C. C. A. 550, 178 U. S. 1, 44 L. Ed. 953, 20 S. Ct. 780.

64 Campbell v. Equitable Life Ass. Soc., 130 Fed. 786; Busch v. StrombergCarlson Tel. Mfg. Co., 217 Fed. 328, 133 C. C. A. 244; Culver v. Newhart, 18 Cal. App. 615, 123 Pac. 975; Chicago, etc., R. Co. v. Provolt, 42 Col. 103, 93 Pac. 1126; Western Union Telegraph Co. v. Ryan, 126 Ga. 191, 55 S. E. 21; Timmons v. Citizens' Bank, 11 Ga. App. 69, 74 S. E. 798; Cleary v. Fawcett, 19 Ga. App. 184, 91 S. E. 227; Wabash R. Co. v. Smith, 134 III. App. 574; William Gilligan Co. v. Casey, 205 Mass. 26, 91 N. E. 124; Rodgers v. Torrent, 111 Mich. 680, 70 N. W. 335; Ebel v. Piehl, 134 Mich. 64, 95 N. W. 1004; Quigley v. Welter, 95

67 Torkington v. Magee, [1902] 2 K. B. 427; Latimer v. Capay Valley Land Co., 137 Cal. 286, 70 Pac. 82; Moore v. Gariglietti, 228 Ill. 143, 81 N. E. 826; Anse La Butte, etc., Co. v. Babb, 122 La. 415, 47 So. 754; Ander

65 Reios v. Mardis, 18 Cal. App. 276, 122 Pac. 1091; Rogers v. Harvey, 143 Ky. 88, 136 S. W. 128.

66 Tolhurst v. Associated Mfrs., [1903] A. C. 414; In re Niagara Radiator Co., 164 Fed. 102; Martin-Alexander Lumber Co. v. Johnson, 70 Ark. 215, 66 S. W. 924; Roberts Cotton Oil Co. v. Morse, 97 Ark. 513, 135 S. W. 334; Pulaski Stave Co. v. Miller's Creek Lumber Co., 138 Ky. 372, 128 S. W. 96; Northwestern Lumber Co. V. Byers, 133 Mich. 534, 95 N. W. 529; son v. American Suburban Corporation, 155 N. C. 131, 71 S. E. 221, 36 L. R. A. (N. S.) 896; Strasser v. Steck, 216 Pa. 577, 66 Atl. 87; Royce v. Carpenter, 80 Vt. 37, 66 Atl. 888; and see case cited infra, § 415.

of drawing water from a spring,68 may likewise be assigned. So a right to the performance of any work not of a personal character, or a contract to refrain from competition, expressed or implied on the sale of a business or good will 70 may be enforced by an assignee,71 as may the right of a land company to have a street railway company operate its line to a tract of land in question.72 A right to damages for breach of contract is also assignable,72 and a contract right which was too personal for assignment may on its breach give rise to an assignable action for damages.73

Where it is possible courts are disposed to hold that a valuable contract right is not only assignable, but is not confined in its scope to the person of the assignee. A contract by one who has sold a business that he will not compete with the purchaser if strictly construed would not even though assignable, forbid competition with an assignee of the purchaser, but it is rather construed unless a contrary intention is expressed, as a promise not to compete with the business in question, whether conducted by the promisee or by one who succeeds to his ownership. Accordingly the promisor is liable to an assignee for competing with him.74 A right which may be assigned by the original obligee may be again assigned by the assignee.75 One of several joint obligees may assign his interest in a chose in action though the assignee can enforce his right only by joining the other joint obligees either in a bill in equity or under code procedure; 76 and one joint obligee may assign his interest to his co-obligees," though even here the obligation cannot without statute be enforced by the latter at law."7 An assignment of money need not specify the amount assigned, if it indicates a method of determining it. Thus, the assignor may assign “such amounts as may be due him" from a specified debtor.78

Boston &c. Club, 166 N. Y. App. D. 484, 151 N. Y. S. 557.

74 Knowles v. Jones, 182 Ala. 187, 62 So. 514; California Steam Navigation Co. v. Wright, 6 Cal. 258, 65 Am. Dec. 511; Graca v. Rodrigues (Calif.), 165 Pac. 1012; Johnston v. Blanchard, 16 Cal. App. 321; Hedge-Elliott Co. v. Lowe, 47 Ia. 137; Swanson v. Kirby, 98 Ga. 586, 26 S. E. 71; Bauwens v. Goethals, 187 Ill. App. 563; Bennett v. Carmichael Produce Co. (Ind. App.), 115 N. E. 793; Up River Ice Co. v. Denler, 114 Mich. 296, 72 N. W. 157, 68 Am. St. Rep. 480; Haugen v. Sundseth, 106 Minn. 129, 118 N. W. 666; Hickey v. Brinkley, 88 Neb. 356, 129 N. W. 553; Webster v. Buss, 61 N. H. 40, 60 Am. Rep. 317; Fleckenstein Bros. Co. v. Fleckenstein, 66 N. J. Eq. 252, 53 Atl. 1043; 57 Atl. 1025; Trowbridge v. Denning, 80 N.

J. L. 236, 77 Atl. 1068; Francisco v. Smith, 143 N. Y. 488, 38 N. E. 980; Anders v. Gardner, 151 N. C. 604, 66 S. E. 665; Gompers v. Rochester, 56 Pa. 194; Public Opinion &c. Co. v. Ransom, 34 S. Dak. 381, 148 N. W. 838, Ann. Cas. 1917 A. 1010. But see contra Hillman v. Shannahan, 4 Oreg. 163, 18 Am. Rep. 281.

75 Dawes v. Boylston, 9 Mass. 337, 346, 6 Am. Dec. 72; Bank of Spring City v. Rhea County (Tenn. Ch.), 59 S. W. 442, and see supra, § 410 ad fin.

76 Groves v. Ruby, 24 Ind. 418; State v. Styner, 154 Ind. 131, 135, 56 N. E. 98; McPike v. McPherson, 41 Mo. 521. See also Chapman v. Plummer, 36 Wis. 262.

77 Smith v. Gregory, 75 Mo. 121. 77a Haworth v. Fisher, 3 Blackf. 249. 78 People v. Westchester County, 57 N. Y. App. D. 135, 67 N. Y. S. 981.

§ 414. Assignment of future rights.

In many of the cases involving assignments of money not yet due, the analogy is suggested of contracts to sell chattel property which the grantor has not yet acquired.79 The analogy between choses in action and chattels is, however, not so perfect as seems to be assumed by the decisions. The legal title to existing chattels can be presently transferred, but the legal title to chattels subsequently to be acquired cannot be transferred without further action of the parties. This rule is what gives the court of equity its opportunity. Apart from statute, however, a complete legal title even in existing choses in action cannot be transferred.80 The practical effect of assignment of such property is produced whether the parties so state or not, by the legal authority or power of attorney which the owner of the claim gives to the assignee to collect it and keep the proceeds, and what may be called an equitable ownership as hereafter defined. The same kind of effect can easily be given if desirable to an assignment of a future claim. It is possible to assign a claim the performance of which is not yet due, and apart from considerations of public policy there seems no limit to this principle. An agent may be appointed to collect all money which shall be due in the future, not only under existing contracts but under future contracts, as readily as to collect what is due at the present time. There is no doubt that agents may be and frequently are appointed with power to deal in matters of interest to the principal's business which have not yet arisen. There seems also no technical difficulty

79 As to such contracts, see 19 Harv. L. Rev. 557; and see the following cases where the same doctrine was applied to choses in action. Tailby v. Official Receiver, 13 A. C. 523; Burdon, etc., Sugar Ref'g Co. v. Ferris Sugar Mfg. Co., 78 Fed. 417, s. c. sub nom. Burdon, etc., Sugar Ref'g. Co. v. Payne, 81 Fed. 663, 26 C. C. A. 552, 167 U. S. 127, 17 S. Ct. 754, 42 L. Ed. 105; Pullan v. Cincinnati, etc., R. Co., 5 Biss. (U. S. C. C.) 237. Re Marine Construction & Drydock Co., 14 Am. B'kcy. Rep. 466; Jessup v. Bridge, 11

Ia. 572, 79 Am. Dec. 513; Sandwich Mfg. Co. v. Robinson, 83 Ia. 567, 49 N. W. 1031; Riddle v. Dow, 98 Ia. 7, 66 N. W. 1066, 32 L. R. A. 811; Edwards v. Peterson, 80 Me. 367, 14 Atl. 936, 6 Am. St. Rep. 207; Schubert v. Herzberg, 65 Mo. App. 578; Williamson v. New Jersey Southern, etc., R., 26 N. J. Eq. 398; Clay v. East Tenn. R. Co., 6 Heisk. 421. See also 70 L. R. A. 338, n. Taylor v. BartonChild Co., 228 Mass. 126, 117 N. E. 43.

80 See supra, § 447.