a citizen. But in the case at bar, Schoolfield's contract required the city to pay one-half of the cost of the street and the property-owners to pay the other half, and he is now asking that the city pay, not one-half of the extra cost, but all of it. If the city should be required to pay upon either basis, the taxpayer's burden would be increased to the extent of the payment, above what he had the right to expect under the contract between Schoolfield and the city.

From these abundant authorities we must further conclude that Schoolfield can not recover from the city of Newport upon an implied liability.

This work having been done under the original contract, can Schoolfield recover damages for the alleged breach thereof? Upon that proposition the circuit judge ruled affirmatively; and in doing so, we think he was in error.

Section 17 of the specifications provided as follows: "All claims for damages must be made in writing to the superintendent of public works and city engineer at the time the damage occurs, or the cause of the claim arises. Unless such claims are so presented, it shall be held that the contractor has waived such claim, and shall not be entitled to receive any pay for same. No extras of any kind will be allowed, unless ordered in writing by the city engineer, and the price for same agreed upon in advance."

It is not pretended that this claim arises under this clause or that appellee has proceeded as is therein required. Nevertheless, we have here an express provision of the contract covering damages and compensation for extras of every kind, with the further provision that they shall not be allowed unless ordered in writing by the city engineer, and the price for same agreed upon in advance. The contract further provided that the work should be commenced "when directed by superintendent of public works and city engineer * *days after the execution of the contract." Assuming that the circuit judge was right in holding that the contract required the notice should be given within a reasonable time after the execution of the contract on September 10th, 1906, we can not concur in his conclusion that Schoolfield had the right to do this work under the contract, and then claim a measure of compensation different from that provided by the contract. If the city broke its contract by re

fusing to permit Schoolfield to do the work, it was liable for the breach. But that is quite a different liability from that set up in the petition. Clearly, if the city had declined to carry out the contract, and had refused to permit Schoolfield to build the street, his remedy was in damages for the breach of the contract; and his measure of damages would have been the profit he could reasonably have made in the construction of the street. But since the city made no change in the contract, Schoolfield had no right to assume that he could proceed with the reconstruction of the street under a new contract, or without a contract, and recover from the city in any way different from that provided in the original contract. A party to a written contract will not be permitted to execute his part thereof, and then claim rights in opposition to the contract, in the absence of fraud, accident, or mistake practiced upon him in its execution. Schoolfield's notification to the general council that he could not build the street under the prices called for in the contract, did not, in the absence of an agreement on the part of the city, enlarge or change his rights under the contract. Moreover, Schoolfield having been notified to proceed with the work under his contract as it then existed, he certainly knew from the two notices to that effect, that he was expected to work under the contract or not at all; and having proceeded with his work pursuant to those notices, and having received the pay for his work as called for by the contract, the respective contractual rights of Schoolfield and the city of Newport have been satisfied. Any other claims or obligations upon either side are beyond the contract and unenforcible.

Under any view of the case Schoolfield was not entitled to recover, and the demurrer to his petition should have been sustained; and, the demurrer having been erroneously overruled, the appellant's motion for a peremptory instruction to find for it, should have been sus tained

Wherefore, the julgment of the circuit court is reversed, with instructions to take further proceedings consistent with this opinion.

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F. Haag & Bro., et al. v. Reichert, et al.

(Decided February 15, 1911.)

Appeal from Henderson Circuit Court.

Contracts-Assignability.—A contract is not assignable where it involves a personal liability, a relation of personal confidence, or calls for the skill or experience of one of the parties. Same-Assent to Assignment.-But where the obligor of a contract for personal services assents to its assignment either in words or by acts sufficient to warrant his assent, the assignment is valid and the contract may be enforced by the assignee. Same-Parties Only are Bound.-One can not be bound by the provisions of a contract between other parties; they can only bind themselves.

Cross Appeal.-A cross appeal can only be granted by the Court of Appeals. A cross appeal granted by the circuit court will not be considered.

VANCE & HEILBRONNER and N. POWELL TAYLOR for appel

lants.

CLAY & CLAY for appellees.

OPINION OF THE COURT BY JUDGE MILLER-Affirming.

Early in 1905 Wiley Reichert and F. Haag & Bro., of Henderson, made a contract for the purchase of the Halliday tract of about 1,800 acres of land in Ballard county, for the sum of $30,000 cash. The deed was drawn and executed and sent to Wiley Reichert and F. Haag & Bro. with a draft for the purchase money. They, however, being unable to raise that amount of money, or unwilling to put so large a sum into one transaction, persuaded John Reichert, the father of Wiley Reichert, to take over their purchase, with the understanding that if F. Haag & Bro. should at any time within six months thereafter repay to John Reichert one-third of the purchase money, with interest, then Reichert would reconvey to F. Haag & Bro. an undivided one-third interest in the land. The appellee James E. Cheatham had negotiated the purchase for Wiley Reichert and the Haags, under a contract by which he was to get one-third of the net profits for his services as agent. In substituting John Reichert as the purchaser, in lieu of Wiley Reichert and the Haags, John Reichert recognized the original contract with Cheatham and promised to pay Cheatham the

one-third of the net profits he should make upon a final sale of the land. F. Haag & Bro. permitted the six months to pass without exercising their right to repurchase the one-third interest in the land from John Reichert After the expiration of the six months, however, they approached John Reichert for the purpose of repurchasing the one-third interest called for by their contract, but he declined to sell. F. Haag & Bro. then appealed to Cheatham to aid them in persuading John Reichert to carry out the original agreement and let them repurchase an undivided one-third interest in the land. Through Cheatham's efforts, John Reichert finally agreed to sell the Haags a half interest in the land for one-half of the original purchase price, with accrued interest thereon from the date of purchase, upon condition that Cheatham would release John Reichert from his contract to pay Cheatham his commission of one-third of the net profits to be made upon the final sale of the land. Cheatham agreed to this, and surrendered his contract to John Reichert; whereupon John Reichert conveyed, at the suggestion of F. Haag & Bro., an undivided one half interest in the land of F. Haag & Bro. and Mann Bros. At the same time F. Haag & Bro. and Mann Bros. executed separate contracts to Cheatham, on March 27th, 1906, by which each firm agreed to pay Cheatham onethird of its net profits upon the final sale of the land, as Cheatham's commission for his services rendered in purchasing the land, and for services rendered and which might thereafter be rendered by Cheatham in the management and sale of the land. In pursuance to this agreement, John Reichert conveyed the property to F. Haag & Bro. and Mann Bros., and they executed written contracts to Cheatham, as above indicated. On April 26th, 1906, Cheatham sold the benefit of his contract with F. Haag & Bro. to appellee John Reichert for $1,000; whereupen Cheatham indorsed upon his contract with F. Haag & Bro. the following assignment:

"For value received, I have and do hereby assign and transfer the above contract to John Reichert, of Henderson, Ky. This April 21, 1906.

"JAS. E. CHEATHAM."

Subsequently, on June 29th, 1906, F. Haag & Bro. sold their undivided one-fourth interest in the land to Mann Bros. for a consideration of $11,125. Of this sum $2,500 was cash, and $8,625 was the amount of the pur

chase money which F. Haag & Bro. had agreed to pay for their interest in said land by the terms of their original contract of purchase. In other words, Mann Bros. assumed to pay F. Haag & Bros.' purchase money, and in addition thereto paid them $2,500 gross profit.

At the time of the sale by F. Haag & Bro. to Mann Bros., they made the following indorsement upon the copy of the written contract between F. Haag & Bro. and Cheatham regarding the latter's commission, to-wit:

"Neither F. Haag & Bro. or Mann Bros. recognized any liability to James E. Cheatham under the within contract, but if, upon the final sale of the lands mentioned therein, there should be any liability on the part of F. Haag & Bro. to said Jas. E. Cheatham, under this contract, the said land having this day been sold to Mann Bros., the said liability is to be paid by said Mann Bros., this June 29, 1906.

"MANN BROS."

On August 20th, 1907, appellee John Reichert, joining James E. Cheatham as a plaintiff, instituted this suit against F. Haag & Bro., and subsequently joined Mann Bros., for the purpose of recovering $833.33, which he claims was one-third of the net profits which F. Haag & Bro. had made upon the sale of their undivided interest in the land to Mann Bros. By an amended petition, Reichert claimed that the $2,500 cash payment was in reality only two-thirds of the consideration agreed on, and that the real consideration, instead of being $2,500 in addition to the other consideration expressed in the deed, was $3,750, and that the amount due as commission under the contract was $1,250, for which he prayed judgment.

The case was transferred to equity, and, upon the trial, the chancellor found that the gross profit of the sale by F. Haag & Bro. to Mann Bros. was $2,500; that the net profit of that sale was $2,100; and he gave Reichert, as assignee of Cheatham, a judgment against F. Haag & Bro. for $700 with a like judgment in favor of F. Haag & Bro. over against Mann Bros. From that judgment F. Haag & Bro. and Mann Bros. appealed; and at the same time the circuit court granted John Reichert, as assignee of Cheatham, a cross appeal from so much of the judgment as failed to allow him the difference between $700 and $1,250, which he claimed in his amended petition.