have construction work performed may also be made by the employer.36 A contract for the production and sale of goods may similarly be assigned by the seller if the work of production did not demand peculiar personal skill.37 Other illustrations of assignable bilateral contracts may be found in the note.38 Even if a promise in a bilateral contract provides for performance involving such personal confidence or skill as to make them incapable of delegation, the rights under the contract may be assigned by the promisor, if he himself performs those duties which cannot be delegated.39

§ 419. Personal responsibility in bilateral contracts as preventing assignment.

Not infrequently it is given as a reason for holding a bilateral contract non-assignable that the personal liability of the assignor to perform on his part, undertaken by him in the original contract in exchange for the right given him therein and now assigned, was a vital element in the contract.40 The

520; Columbia Water Power Co. v. Columbia, 5 S. Car. 225.

36 In American Bonding Co. v. Baltimore, etc., R. Co., 124 Fed. 866, 60 C. C. A. 52, it was held that a contract for construction work by the receivers of a railroad company might be enforced by a new railroad company to which the receivers had assigned their rights when the old company was reorganized.

37 LaRue v. Groezinger, 84 Cal. 281, 24 Pac. 42, 18 Am. St. Rep. 179. (A contract to buy and sell all grapes to be grown on certain vines for ten years, assignable by the seller); Strong v. Moore, 75 Kans. 437, 89 Pac. 895. (A contract to buy and sell 600 young peach trees assignable by the nursery company, the seller.) In these cases, it seems that if the circumstances had shown special reliance on the seller's skill, the assignments could not have been upheld.

38 American Smelting, etc., Co. v. Bunker Hill, etc., Co., 248 Fed. 172;

Dorr v. Alford, 111 Ia. 278, 82 N. W. 789; Northwestern Cooperage, etc., Co. v. Byers, 133 Mich. 534, 95 N. W. 529; Missouri, K. & T. R. Co. v. Carter, 95 Tex. 461, 68 S. W. 159; Poling v. Condon-Lane, etc., Co., 55 W. Va. 529, 47 S. E. 279.

39 Sloan v. Williams, 138 Ill. 43, 27 N. E. 531, 12 L. R. A. 496; American Lithographic Co. v. Ziegler, 216 Mass. 287, 103 N. E. 909; Houssels v. Jacobs, 178 Mo. 579, 77 S. W. 857; Harlow v. Oregonian Pub. Co., 53 Or. 272, 100 Pac. 7.

40 Robson v. Drummond, 2 B. & Ad. 303; Arkansas Valley Smelting Co. v. Belden Mining Co., 127 U. S. 379, 8 S. Ct. 1308, 32 L. Ed. 246; Sims v. Cordele Ice Co., 119 Ga. 597, 46 S. E. 841; Macon Auto Co. v. Heard, 142 Ga. 264, 82 S. E. 658; Nelson v. Reidelbach (Ind. App.), 119 N. E. 804; Stockstill v. Byrd, 132 La. 404, 61 So. 446; Lansden v. McCarthy, 45 Mo. 106; D. C. Hardy Implement Co. v. Iron Works, 129 Mo. 222, 31 S. W.

argument is made that if the performances in a bilateral contract are intended to be concurrent, or if the performance by the assignor is to precede the performance of the other party to the contract, no injustice is done by upholding the assignment; but if performance on the part of the assignor, by the terms of the original contract is to follow the performance on the other side the assignment cannot be permitted since the credit given to the assignor was personal to himself, and justice requires that the other party to the contract should not be compelled to perform and trust to the credit of the assignee.11 This argument assumes that an assignment of a bilateral contract involves a true assignment of duties; that is, the substitution of a new duty on the part of the assignee, instead of the original duty assumed by the assignor to the other party to the contract. It cannot be admitted that this is the true meaning of assignment. Novation is the word appropriate to such a changed relation, and as appears from the next section an attempt by one party to force a novation on the other party to a contract will excuse the latter, but unless the assignor repudiates a continuance of his liability on the contract after the assignment, it does not seem a valid objection that the performance of the assignor is not due until after the performance of the other party to the contract.42 If it were in

599; Standard Sewing Mach. Co. v. Smith, 51 Mont. 245, 152 Pac. 38; Rice v. Gibbs, 40 Neb. 264, 58 N. W. 724; Rosenthal Paper Co. v. National, etc., Paper Co., 175 N. Y. App. D. 606, 162 N. Y. S. 814; Menger v. Ward, 87 Tex. 622, 30 S. W. 853. See also Snow v. Nelson, 113 Fed. 353, and Swarts v. Narragansett Electric Lighting Co., 26 R. I. 388, 436, 59 Atl. 77, 111.

41 If the assignee waives the period of credit, provided for by the contract and tenders performance concurrently, the objection cannot be made. In re Niagara Radiator Co., 164 Fed. 162.

42 Therefore in British Waggon Co. v. Lea, 5 Q. B. D. 149, the court held the contract assignable; saying,that as long as the assignor continued

to exist, and through the assignee to fulfil its obligations under the contract, the other party to the original contract had no defence. See also cases cited supra, § 412.

Assignments of rights, for which payment was to be made on credit were also upheld in Tolhurst v. Portland Cement Mfrs., [1903] A. C. 414; Hofman v. Chicago League Ball Club, 195 Ill. App. 249; Voigt v. Murphy Heating Co., 164 Mich. 539, 129 N. W. 701; Liberty Wall Paper Co. v. Stoner Wall Paper Mfg. Co., 59 N. Y. App. Div. 353, 69 N. Y. 355, affd. 170 N. Y. 582, 63 N. E. 1119; Minnetonka Oil Co. v. Cleveland Vitrified Brick Co., 27 Okl. 180, 111 Pac. 326; though objection to the assignments on this ground does not seem to have been

deed true that the assignor was discharged of his duties, and the assignee substituted in his place, few bilateral contracts even though performances were by their terms to be concurrent would be assignable. It is sometimes assumed that in such a case the non-assigning party runs no risk because he does not have to perform until performance on the other side is tendered to him, and he is not injured if such performance is tendered by an assignee. But the non-assigning party is entitled from the moment when the contract is entered into to the personal responsibility of the assignor in such a case as well as in cases where the assignor's performance was by the terms of the contract to be postponed until after his own performance. To wait until the time for performance may involve serious detriment if there is no responsible person answerable if counter performance is not then made in exchange for the performance tendered. Moreover, the concurrent performance when accepted does not necessarily discharge the liability of the assignor. 43 Acceptance of such performance is an election to continue performance, in spite of any justification for refusing to do so, but it is not a discharge of contractual liability for a defect in the performance, especially if the defect is latent. Accordingly unless the assignor still remained liable for any defects even in concurrent performances, the assignment could not be permitted.

A further argument may be made in support of the nonassignability of a right to the transfer of property where the assignor's duty to pay, by the terms of the original contract, was to be postponed till a date later than that at which performance of the assigned right was due; namely, that the assignor even though remaining liable is less entitled to credit if performance by the other party to the contract must be rendered to the assignee, than he would have been if the performance were rendered directly to himself, as was originally contemplated. To this it may be answered that if the assignor had received performance under the original contract, he might have made an immediate transfer of what he received, and there seems no difference in substance in allowing him to assign the taken. See also cases cited supra, 43 See infra, § 700.

§ 412.

performance immediately after he receives it and allowing him to assign the right to the performance immediately before its transfer is due. In either case the assignor if insolvent will be subject to the rules forbidding fraudulent conveyances. Moreover, the obligation of the assignee to the assignor to hold the latter harmless is an asset of the assignor which can be made available in equity in favor of the other party to the original contract.44 Personal responsibility may indeed in some cases prevent a bilateral contract from being assignable even in the limited sense in which that word is properly used-that is, it may prevent either the duty under the contract from being delegated, or the right under it from being assigned, but this will only be where either the right is so personal that it cannot be transferred, 45 or the duty so personal that performance of it cannot be delegated to an agent, even though the original obligor still remains liable.46)

§ 420. What is called an assignment may be an offer of novation.

The apparent misunderstanding of some courts as to the meaning of assignment in a bilateral contract, to which attention is called in the preceding section, is in many cases probably merely a reflection of a similiar misunderstanding of the parties themselves. Doubtless parties to bilateral contracts frequently attempt to effect the substitution of the liability of a new party for that of one of the original parties, and frequently call such an attempted transaction an assignment. By whatever name the parties may call the transaction, if it is made clear that the so-called assignor intends by the transaction to be free from all further liability, it seems that acceptance by the other party to the contract of any subsequent performance from the socalled assignee, would amount to assent to a proposed novation, and the so-called assignor would be discharged from further lia

44 Mangles v. Dixon, 3 H. L. C. 702. See also supra, §§ 361–363.

45 See supra, §§ 4, 13. E. g., where the assignor was to be entrusted as bailee with property of the other. See Arkansas Vallly Smelting Co. V. Belden Mining Co., 127 U. S. 379, 8

S. Ct. 1308, 32 L. Ed. 246; Stockstill v. Byrd, 132 La. 404, 61 So. 446.

46 Eastern Advertising Co. v. McGaw, 89 Md. 72, 42 Atl. 923; Tarr v. Veasey, 125 Md. 199, 93 Atl. 428. See supra, § 411.

bility. Such an offer may always be refused, and if the socalled assignor in effect has indicated that he will not thereafter be responsible for the performance of his promise, and that the other party to the contract must look solely to the so-called assignee, there is a repudiation of contract by the assignor which justifies the injured party in refusing altogether to continue performance. Repudiation is none the less an excuse to the other party to the contract when accompanied by the statement that the obligations of the repudiator have been assumed and will be fulfilled by another person. 48 The question of diffi