his own name, he might, against the will of the trustee and contrary to the objects of the trust, be able to control the property.

Hence, trustees of an express trust, persons in whose name a contract is made for the benefit of others, executors and administrators, and those who may be authorized by statute, may still sue in their own name, and without joining those for whose benefit the suits are brought; the language of the different codes covering these exceptions is not precisely the same, but the same in effect.

5

In the preceding chapter I have spoken of plaintiffs in actions for the recovery of real property held adversely, which, in some states, is another exception to the general rule.

§ 47. What Contracts are Assignable."

The requirement that actions shall be brought in the name of the real party in interest changes the common-law rule of pleading, chiefly in regard to actions for breach of those contracts which be

+ Code Civ. Proc. N. Y. § 449; Rev. St. Ohio, §§ 4993-4995; Rev. St. Mo. §§ 1990, 1991; Code Civ. Proc. Ind. 251, 252; Code Iowa, 3748, 3749; Code Civ. Proc. Cal. §§ 367-369; Gen. St. Minn. c. 66, §§ 26, 28; Gen. St. Kan. pars. 41034105; Consol. St. Neb. & 4564-4567; Gen. St. Nev. §§ 3026-3028; Rev. St. Wis. 2605-2607; Code Qr. §§ 103–129; Code Civ. Proc. S. C. §§ 132-134; Comp. Laws S. D. §§ 4870-4872; Code Civ. Proc. Colo. §§ 3-5; Mansf. Dig. Ark. §§ 49334936; Gen. St. Conn. §§ 883, 888; Rev. St. Idaho, §§ 4090-4092; Civ. Code Ky. §§ 18-21; Code N. C. §§. 177-179; Comp. Laws N. D. §§ 4870-4872; St. Okl. §§ 4305, 4306; Code Wash. § 134; Rev. St. Ariz. § 680; Code Civ Proc. Wyo. §§ 2382-2384; Comp. Laws Utah, §§ 3169–3171; Code Civ. Proc. Mont. 4-6. [These foregoing statutory provisions cover both the general rule as to parties plaintiff as well as the exceptions to the rule.]

5 Ante, § 23a. [Ante, § 33.

Hoyt v. Thompson, 5 N. Y. 320, per Selden, J.: "All choses in action, embracing demands which are considered as matters of property or estate, are now assignable either at law or in equity. Nothing is excluded except mere personal torts which die with the party. A claim, therefore, for property fraudulently or tortiously taken or received, or wrongfully withheld, and even for an injury to real or personal property, may be assigned. In the following states an action for assault and battery survives by express statutory provision: Tennessee, Iowa, Arkansas, and Wisconsin." See, also, the following cases: Hegerich v. Keddie, 99 N. Y. 258, 1 N. E. 787; Chapman v. Plummer, 36 Wis. 262; Blair v. Hamilton, 48 Ind. 32; Board of Com'rs v. Jameson, 86 Ind. 154; Allen v. Miller, 11 Ohio St. 374. Prior to the adop

fore were assignable in

no technical, legal title.

After they

equity, but to which the assignee acquired Choses in action, at common law, are not assignable; they are regarded as rights merely to go to law, and the policy of the old law forbade the sale of a right to sue. came to be treated as property, and the right of transfer came to be recognized and the rights of the assignee to be protected, the form as usual, survived when its reason had passed away, and at common-law, the owner is still obliged to sue, as though no assignment had been made.

The Code makes no change in the right itself: it abolishes, so far as it can be done, the distinctions between rights at law and in equity, treats an equitable owner as the real owner, and an equitable assignment as an actual assignment. But it goes no further, and it makes nothing transferable that was not so before; so, we are governed by equity rules as to what things in action are assignable, whether sounding in contract or in tort.'

The general rule is that all contracts, and all rights of action arising from their breach, are capable of sale and assignment. A few exceptions will be noted in the next section, but the commercial spirit has so triumphed over old ideas, that all things in action as well as in possession, all rights not personal merely, all that can be treated as part of one's estate, that are a subject of valuation, that are property, can be transferred like other property; and, as we have heretofore seen in regard to torts, survivorship is the test of assignability.

tion of the Code, an assignee of part of a demand could not sue at law; but now he may, by making the assignor a party, and, if he should refuse to become a party plaintiff, he may be made a party defendant. Grain v. Aldrich, 38 Cal. 514; Lapping v. Duffy, 47 Ind. 51.]

7 Harris, J., in HODGMAN v. WESTERN R. CO., 7 How. Pr. 492, says that the only change made by the code "is to transfer, with the beneficial interest, the right of action also, in those cases where, before, the court would recognize and protect the rights of the assignee. No new right of action is created; no authority is given to assign a right of action not before assignable."

8 Ante, § 38.

The authorities cited in regard to the application of this test to rights of action arising from torts apply equally to contracts. See cases cited, ante, $$ 38, 43.

§ 48. Contracts not Assignable.

A class of contracts of a mere personal nature cannot be separated from the person with whom they are made, they usually involve personal trust or confidence, can have no existence except as between the original parties, and hence they can neither survive to or against the personal representative of a deceased party, nor are they capable of sale or assignment.

A contract of apprenticeship is one involving a personal trust, and cannot be transferred.10 So, a contract of marriage is of such a personal nature that a right of action for its breach will not survive the death of either party," and is, therefore, not assignable.

10 In HALL v. GARDNER, 1 Mass. 172, the plaintiffs charged that they were entitled by an indenture to the services of an Indian boy; that they contracted with the defendants to take him into their service for a voyage at sea, etc., and to pay them a portion of the profits realized from the voyage; that defendants did not enter upon the adventure agreed upon, etc., by means of which the plaintiffs lost their anticipated share of the profits and services of the boy. It appeared in evidence that the boy had been bound as an apprentice to the father of the plaintiffs until his majority, and that he had assigned the indenture to the plaintiffs. Held, that the assignment was a nullity; that the services could not be transferred. Also, that had the indenture been made to the plaintiffs, they would not have had a right to send the apprentice "to the end of the globe in their service." In DAVIS v. COBURN, 8 Mass. 299, the apprentice had been bound to the plaintiff by his father, and the plaintiff had transferred a portion of the term to the defendant for $150. The apprentice absconded, and the action was to recover the price agreed to be paid. Held, that the contract of apprenticeship was a personal trust, and that its assignment did not confer any authority or right to the assignee, especially as it was made in New Hampshire, and the apprentice was to be taken to MassachuSee Cochran's Ex'rs v. Davis, 5 Litt. (Ky.) 118, and Ellen v. Topp, 6 Exch. 424.

setts.

11 Chamberlain v. Williamson, 2 Maule & S. 408; Lattimore v. Simmons, 13 Serg. & R. 183; Stebbins v. Palmer, 1 Pick. 71; Smith v. Sherman, 4 Cush. 408. In Stebbins v. Palmer, the opinion, after referring to rights of action which do and do not survive that arise from torts, says: "The distinction seems to be between causes of action which affect the estate and those which affect the person only; the former survive for or against the executor, and the latter die with the person. According to this distinction, an action for the breach of a promise of marriage would not survive, for it is a contract merely personal-at least, it does not necessarily affect property. The principal ground

The principle is thus stated by Chitty: 12 "No action lies against executors upon a covenant to be performed by the testator in person, and which, consequently, the executor cannot perform, or for the breach of a personal contract, when the breach can occasion no injury to the personal estate of the testator or intestate, and when, therefore, the remedy dies with the person;" and Chitty on Con

for damage is disappointed hope; the injury complained of is violated faith, more resembling in substance deceit and fraud, than a mere common breach of promise." In Smith v. Sherman the court goes a little further, and attempts to define the special damage for which the cause of action would survive. Says the court, per Shaw, J.: "These authorities (those above cited) speak of cases where no special damage is alleged. The precise extent of this qualification is not explained; the most natural supposition, is that it must be some damage of such a character that it might be given in evidence to aggravate the damages in an action, or be itself the substantive cause of action-as, in case of trespass quare clausum, and carrying away plaintiff's goods, the carrying away the goods may be a ground of special damage, or be the cause of a separate action. In this view all the damage directly incidental to the complaint, the breach of promise, if the principal action falls must fall with it. In looking at the specification of claims set forth by the attorney of the applicant, we can perceive no one which would be a substantive cause of action. The time lost and the expenses incurred in preparation for the marriage might have been properly specified in making up the aggregate of damage had the writ been prosecuted and the case proved, but they would have been strictly incidental. Therefore, if the principal action for breach of promise of marriage could not be maintained, these damages could not be recovered in any form, and a separate action for them would not lie." CHAMBERLAIN v. WILLIAMSON, 2 Maule & S. 408, was also an action for a breach of a promise of marriage, and in holding that the right of action did not survive, the court, per Ellenborough, J., says: "If this action be maintainable, then every action founded on an implied promise to a testator, when the damage subsists in the previous personal suffering of the testator, would be also maintainable by the executor or administrator. All injuries affecting the life and health of the deceased, all such as arise out of the unskillfulness of medical practitioners, the imprisonment of a party brought on by the negligence of an attorneyall these would be breaches of the implied promise by the persons employed to exhibit a proper portion of skill and attention. We are not aware, however, of any attempt of the executor or administrator to maintain an action in any such case. When the damage to the personal estate can be stated on the record, that involves a different question." [An installment of alimony deposited with the clerk is not subject to assignment by her before it is due. Kempster v. Evans, 81 Wis. 247, 51 N. W. 327; In re Robinson, 27 Ch. Div. 160.]

tracts 13 says that both specialties and simple contracts bind the executors, unless it be "a personal engagement to be performed by the testator only, and requiring his personal skill and taste."1 The code does not change the law in this regard.15 But all contracts for work are not thus personal, and when an executory agreement for labor can as well be performed by an assignee, it is assignable.16

§ 49.

As to Indorsements and Assignments by Executors and Administrators.

It is thus seen that, as to things in action which can be assigned, the action must be brought in the name of the assignee, and it is assumed that persons capable of contracting are also capable of indorsing commercial paper, and of assigning choses in action. But doubts sometimes arise whether an indorsee or assignee has acquired such a title as to authorize an action in his own name; and, first, when the transfer has been made by an executor or administrator.

As to contracts made with the administrator, although dealing with the assets, no question can arise; they are his contracts, and not those of the deceased, and he may dispose of them as he pleases. Undertakings and other rights in action belonging to the deceased at his death, he is not bound to prosecute, but may, if acting in good

12 1 Chit. Pl. 51.

13 (7th Am. Ed.) p. 98.

14 In SHULTZ v. JOHNSON, 5 B. Mon. 497, the action was based upon an agreement made with the plaintiff's intestate, by which the defendants agreed to purchase six successive crops of hemp of the intestate's own raising, embracing all the hemp he could raise upon certain land. The contract was held to be a personal one, and, upon his death, his administrator was defeated in attempt to compel the defendants to take the hemp thereafter raised. The court treated the agreement as personal, because of the phrases "of his own raising," and "he can raise." In Coleman v. Woolley's Ex'r, 10 B. Mon. 320, Coleman had employed Woolley to defend her son, charged with murder. Before the trial Woolley had been appointed judge, and the defense was conducted by his partHeld, that the contract, though personal, had been complied with, and that Coleman was liable for the fee.

ner.

15 Wade v. Kalbfleisch, 58 N. Y. 282.

16 DEVLIN v. MAYOR, etc., 63 N. Y. 8. As to the right of an assignee of a contract for street cleaning. In this case the city had recognized the assign

ment.