tion of trust, constitute himself a trustee, and, without an actual transfer of the title, may so deal with the property as to deprive himself of its beneficial ownership, and declare that he will hold it from that time forward in trust for the other person.' * * *

If the donor makes a third party a trustee, he must transfer to him the subject of the trust in such mode as will be effectual to pass the title. The transaction, as in the case of a gift, to be effectual, must be accompanied by delivery of the subject of the trust, or by some act so strongly indicative of the donor's intention as to be tantamount to such a delivery; but where the donor makes himself the trustee, no transfer of the subject-matter is necessary. * * * In such cases no assignment of the legal title is required, for the nature and effect of the transaction is that the legal title remains in the donor for the benefit of the donee. It is conceded that, as the bonds of the Pensacola & Atlantic Railroad Company-the bonds in question-were not delivered to Thomas Smith Kelly by Thomas Smith, the transaction cannot be sustained as a gift. It is clear that a gift was not in contemplation, and the only question for our determination is whether or not a complete and valid trust was created, for a trust would seem to have been contemplated.

* * *

There is no certain form required in the creation of a trust. In the case of personal property or choses in action, trusts may be proved by parol. If the declaration be in writing, it is not essential, as a general rule, that it should be in any particular form. It may be couched in any language which is sufficiently expressive of the intention to create a trust. "Three things, it has been said, must concur to raise a trust-sufficient words to create, a definite subject, and a certain or ascertained object; and to these requisites may be added another, viz., that the terms of the trust should be sufficiently declared." Bisp. Eq. 65, citing Cruwys v. Colman, 9 Ves. 323. The intention must be a complete one, and this requisite is especially applicable to trusts created by voluntary dispositions. "A mere inchoate and executory design is not enough, and, unless there is some distinct equity-as fraud, for example-it cannot be enforced." Bisp. Eq. 65. The intention must be plainly manifest, and not derived from loose and equivocal expressions of parties, made at different times, and upon different occasions; but any words which indicate with sufficient certainty a purpose to create a trust will be effective in so doing. It is not necessary that the terms "trust" or "trustee" should be used. The donor need not say in so many words, "I declare myself a trustee," but he must do something which is equivalent to it, and use expressions which have that meaning, for, however anxious the court may be to carry out a man's intention, it is not at liberty to construe words otherwise than according to their proper meaning. * ** In Heartley v. Nicholson, L. R. 19 Eq. 233, Vice Chancellor Bacon says: "It is not necessary that the declaration of a trust should be in terms explicit, but what I take the law to require is that the donor should have evinced by his acts, which admit of no other interpretation, that he himself had ceased to be, and that some other person had become, the beneficial owner of the subject of the gift or transfer, and that such legal right of it, if any, as he retained, was held in trust for the donee." * * *

In the case at bar the subject of the alleged trust is certain, the cestui que trust is particularly designated by name and identified, while

the terms are specific, and sufficiently shown. The contention is, however, that a trust upon these terms was not sufficiently declared; that the whole matter rested in the undeclared and unexecuted intention of the donor, and was, therefore, wholly without effect. Thomas Smith, although a married man, had no children. He was the owner of a large estate, the personalty alone aggregating about $1,000,000. Thomas Smith Kelly was his nephew, his godson and namesake, and, although his father and mother were both living, he lived with and was maintained and educated by his uncle from the age of 3 years until the time of the decedent's death, on the 20th of May, 1883, when he was about 13 years of age. His uncle admittedly stood in loco parentis, which would seem to furnish a sufficient motive for making this disposition of the bonds, and would have the like effect generally to that which attends the relation of parent and child. * * * The bonds were purchased 28th of January, 1882, and the death of the decedent occurred on the 20th of May, 1883. A year or more before his decease-which was presumably near the time when the bonds were purchased-Thomas Smith, in a conversation with John H. Kelly, the father of Thomas Smith Kelly, stated "he had laid by or appropriated some bonds for Tom." After his death, when his box in the trust company's vaults was opened, the bonds in question were found among his assets. The envelope in which they were contained was indorsed: "13 bonds, $1,000 each, held for Tom Smith Kelly. [Signed] T. S. Pensacola & Atlantic R. R. mortgage bonds." The envelope contained bonds of that description and amount. In the decedent's account-book was an entry in his own handwriting, as follows: "* $13,000 of these bonds I bought for, and are the property of, my nephew and godson, Thomas Smith Kelly, and belong to him. Thomas Smith.

* *

* *

In the absence of the precise terms "in trust," it is difficult to suggest words more expressive of a trust than the words thus employed. We are of opinion that the trust is fully established, and the decree of the orphans' court is affirmed, and the appeal dismissed, at the costs of the appellant.

SECTION 5.-INTERESTS CAPABLE OF ASSIGNMENT

RODIJKEIT v. ANDREWS.

(Supreme Court of Ohio, 1906. 74 Ohio St. 104, 77 N. E. 747, 5 L. R. A. IN. S.] 564, 6 Ann. Cas. 761.)

SUMMERS, J. * *The question presented is the right of a person in the employ of another, in the absence of a contract for a definite time of employment, to assign future earnings from such employment. It is well settled that a mere expectancy or possibility is not assignable at law, consequently wages to be earned in the future, not under an existing engagement, but under engagements subsequently to be made, are not assignable. If there is an existing employment, under which it may reasonably be expected that the wages assigned will be earned, then the possibility is coupled with an interest, and the wages may be assigned. *

*

Some of the early cases were to the effect that the engagement must be for a time covering the wages assigned. * * * And later cases held that the assignment was valid although the engagement was subject to be terminated at any time. But in Kane v. Clough, 36 Mich. 436, 24 Am. Rep. 599, Cooley, C. J., states that he is unable to distinguish a case of existing employment merely, where there is no contract for a definite time, but only an employment, and an expectation of continuous work, from a case of an existing contract for a fixed time, but subject to the right to discharge at will, and, accordingly, it is there ruled that an assignment of wages to be earned in the future under an existing employment is valid. * * "When a party has entered into a contract or arrangement, by the ordinary and legitimate and natural operation of which he will acquire property, his existing right thereunder is certainly not a mere naked hope; it is a possibility of acquiring property coupled with a legal interest in the contract. The cargo to be obtained or the freight to be earned by a ship on a voyage already contracted for, the wages to be earned under an existing employment, the payment to become due under an existing building contract, are familiar examples." Pom. Eq. Jur. § 1286. "An assignment of his wages by a laborer, executed when he is not engaged in, and not under contract for, the employment in which the wages are to be earned, is too vague and uncertain to be sustained as a valid assignment and transfer of property." Lehigh Valley R. Co. v. Woodring, 116 Pa. 513, 9 Atl. 58. But "an assignment of wages expected to be earned in the future in a specified employment, though not under an existing employment or contract, is valid in equity.' Edwards v. Peterson, 80 Me. 367, 14 Atl. 936, 6 Am. St. Rep. 207. The reason such an assignment is not good at law, but may be in equity, is tersely stated thus: "To make a grant or assignment valid at law, the thing which is the subject of it must have an existence, actual or potential, at the time of such grant or assignment. But courts of equity support assignments not only of choses in action, but of contingent interests and expectations, and also of things which have no present actual or potential existence, but rest in mere possibility only."

BRITISH WAGGON CO. et al. v. LEA & CO.

(Queen's Bench Division, 1880. 5 Q. B. Div. 149.)

The Parkgate Waggon Company, one of the plaintiffs, let to defendants fifty railway waggons, for a term of seven years, lessor contracting to keep them in repair. Four years after the making of the contract, the Parkgate Waggon Company assigned the contract to the British Waggon Company, which agreed to do plaintiff's duties under the contract. Defendants assert that this assignment is a breach of the contract, and that they may treat the contract as being at an end. Plaintiffs bring suit for rental of the waggons. COCKBURN, C. J. * * * The main contention on the part of the defendants * * * was that, as the Parkgate Company had, by assigning the contracts, and by making over their repairing stations to the British Company, incapacitated themselves to fulfill their obligation to keep the waggons in repair, that company had no right, as between themselves and the defendants, to substitute a third party to do

the work they had engaged to perform, nor were the defendants bound to accept the party so substituted as the one to whom they were to look for performance of the contract; the contract was therefore at an end.

The authority principally relied on in support of this contention was the case of Robson v. Drummond, 2 B. & Ad. 303, approved of by this court in Humble v. Hunter, 12 Q. B. 310. In Robson v. Drummond, supra, a carriage having been hired of one Sharp, a coachmaker, for five years, at a yearly rent, payable in advance each year, the carriage was to be kept in repair and painted once a year by the makerRobson being then a partner in the business, but unknown to the defendant-on Sharp retiring from the business after three years had expired, and making over all interest in the business and property in the goods to Robson, it was held that the defendant could not be sued on the contract—by Lord Tenterden, on the ground that "the defendant might have been induced to enter into the contract by reason of the personal confidence which he reposed in Sharp, and therefore might have agreed to pay money in advance, for which reason the defendant had a right to object to its being performed by any other person"; and by Littledale and Paike, JJ., on the additional ground that the defendant had a right to the personal services of Sharp, and to the benefit of his judgment and taste, to the end of the contract. In like manner, where goods are ordered of a particular manufacturer, another, who has succeeded to his business, cannot execute the order, so as to bind the customer, who has not been made aware of the transfer of the business, to accept the goods. The latter is entitled to refuse to deal with any other than the manufacturer whose goods he intended to buy. For this Boulton v. Jones, 2 H. & N. 564, is a sufficient authority. The case of Robson v. Drummond, 2 B. & Ad. 303, comes nearer to the present case, but is, we think, distinguishable from it. We entirely concur in the principle on which the decision in Robson v. Drummond, supra, rests, namely, that where a person contracts with another to do work or perform service, and it can be inferred that the person employed has been selected with reference to his individual skill, competency, or other personal qualification, the inability or unwillingness of the party so employed to execute the work or perform the service is a sufficient answer to any demand by a stranger to the original contract of the performance of it by the other party, and entitles the latter to treat the contract as at an end, notwithstanding that the person tendered to take the place of the contracting party may be equally well qualified to do the service. Personal performance is in such a case of the essence of the contract, which, consequently, cannot in its absence be enforced against an unwilling party. But this principle appears to us inapplicable in the present instance, inasmuch as we cannot suppose that in stipulating for the repair of these waggons by the company-a rough description of work which ordinary workmen conversant with the business would be perfectly able to execute the defendants attached any importance to whether the repairs were done by the company, or by any one with whom the company might enter into a subsidiary contract to do the work. All that the hirers, the defendants, cared for in this stipulation. was that the waggons should be kept in repair; it was indifferent to them by whom the repairs should be done. Thus if, without going into liquidation, or assigning these contracts, the company had en

tered into a contract with any competent party to do the repairs, and so had procured them to be done, we cannot think that this would have been a departure from the terms of the contract to keep the waggons in repair. While fully acquiescing in the general principle just referred to, we must take care not to push it beyond reasonable limits. And we cannot but think that, in applying the principle, the Court of Queen's Bench in Robson v. Drummond, supra, went to the utmost length to which it can be carried, as it is difficult to see how in repairing a carriage when necessary, or painting it once a year, preference would be given to one coachmaker over another. Much work is contracted for, which it is known can only be executed by means of subcontracts; much is contracted for as to which it is indifferent to the party for whom it is to be done, whether it is to be done by the immediate party to the contract, or by some one on his behalf.

We are therefore of opinion that our judgment must be for the plaintiffs for the amount claimed.

PAIGE v. FAURE.

(Court of Appeals of New York, 1920. 229 N. Y. 114, 127 N. E. 898, 10 A. L. R. 649.)

Action by Paige against Faure. From judgment for plaintiff, defendant appeals.

MCLAUGHLIN, J. On the 12th of December, 1914, the appellant, a dealer in automobile tires bearing his name, entered into a contract with the respondent and one Lindner, the material terms of which, so far as the question presented on the appeal is concerned, are as follows: Faure, for a period of one year, gave to Paige and Lindner the exclusive agency in the United States, except the cities of Boston and New York and certain territory adjacent thereto, to sell automobile tires manufactured by and for him and bearing his name. He agreed to sell the tires and make prompt delivery to Paige and Lindner at the prices charged him for their manufacture by the B. F. Goodrich Company, or any other manufacturer, plus $2 profit on each. He also agreed to immediately consign to them a maximum of 30 tires, title to which was to remain in him until sold; they agreeing to promptly inform him of sales made there from and to pay for all goods sold, whether from consigned stock or those purchased outright, on the 20th of the month following the date of sale. They also agreed, upon the execution of the contract, to purchase $1,000 worth of plaintiff's goods, and to thereafter, during the life of the contract or any renewals thereof, carry and sell his stock; he agreeing to renew the contract from year to year at their option, provided they sold, during the year immediately preceding the renewal, $10,000 worth of his goods and gave him 30 days' written notice before the expiration of the contract of an intention to renew. They purchased $1,000 worth of tires and entered upon and continued to carry out the provisions of the contract until some time in July following, when Lindner sold his interest in the contract to Paige. Paige thereafter continued to perform until some time in November ($10,000 worth of plaintiff's goods having in the meantime been sold), when he gave notice of his intention and requested a renewal of the contract for another year. Faure refused