who thus agrees to use his personal skill and knowledge, and has been contracted with by reason of the trust and confidence placed in him personally, cannot, while the agreement is still executory, substitute another in his place by assignment, in order to perform the service, without the consent of the other contracting party. * It is true that after the contract has been exehe may assign the right

cuted by the person

*

Question 164: What did Dupuy attempt to assign in this case? Did the other party to the contract have to recognize the assignment? Why?

§ 151. (Contracts, Sec. 119.) Power to assign contractual rights when coupled with personal confidence and liability.

Case 165. Demarest v. Dunton Lumber Co., 161 Federal Reports, 264.

Facts: The facts are stated in the opinion.

Point Involved: The assignability of a contract to purchase lumber involving also the credit and individuality of the purchaser.

WARD, CIRCUIT JUDGE: "The plaintiff sues as assignee of a contract dated December 11, 1900, between W. E. Kelly & Co. and the Dunton Lumber Company, and complains that the defendant has failed and refused to deliver to him lumber covered by the contract. Under the contract the lumber company sold to Kelly & Co. the entire cut of white pine lumber for 1901, except so much as it should need for its retail trade in the city of Rumford Falls, agreeing to retain, not the best of the lumber, but only an average grade for that trade. Delivery was to be f. o. b. cars at Rumford Falls, Kelly & Co. to pay within 10 days from date of invoice. The logs were to be cut in lengths of 12, 14, and 16 feet; but Kelly & Co. agreed to accept some lumber shorter than 12 feet, not less than 8 feet, and some longer than 16 feet. The

trial judge held that this contract was not assignable, and that, therefore, the plaintiff had no right of action. "While the authorities do not differ as to the principle that a contract personal in its nature cannot be assigned by one party without the consent of the other, they differ in the application of the principle; the question in each case being whether the contract is personal or not. The law on the subject for the federal courts has been laid down by the Supreme Court in Arkansas Smelting Company v. Belding Mining Company, 127 U. S. 379, 8 Sup. Ct. 1308, 32 L. Ed. 246, in which Mr. Justice Gray said: "At the present day, no doubt, an agreement to pay money, or to deliver goods, may be assigned by the person to whom the money is paid or the goods are to be delivered, if there is nothing in the terms of the contract, whether by requiring something to be afterwards done by him, or by some other stipulation, which manifests the intention of the parties that it shall not be assignable. But every one has a right to select and determine with whom he will contract, and cannot have another person thrust upon him without his consent. In the familiar phrase of Lord Denman: "You have the right to the benefit you anticipate from the character, credit, and substance of the party with whom you contract." Humble v. Hunter, 12 Q. B. 310, 317; The rule upon this subject, as applicable to the case at bar, is well expressed in a recent English treatise: 'Rights arising out of contract cannot be transferred, if they are coupled with liabilities, or if they involve a relation of personal confidence such that the party whose agreement conferred those rights must have intended them to be exercised. only by him in whom he actually confided.' Pollock on Contracts, 425.

"The contract under consideration is not merely for the sale of personal property for cash, but implies confidence in Kelly & Co., because they were to have 10 days' credit after title to the lumber passed to them, and because the amount of lumber shorter or longer than the lengths provided for in the contract which they were

to accept was not fixed. So, also, the amount of lumber the lumber company needed for its retail trade was not fixed, and that amount, as well as the grade of lumber retained, were subjects which the lumber company might have been willing to leave open with Kelly & Co., but not with their assigns. The rights of Kelly & Co. were coupled with liabilities and involved personal confidence. See, also, Snow v. Nelson (C. C.), 113 Fed. 353.

"The judgment is affirmed."

Question 165: B agreed with K, a cake manufacturer to supply K all the eggs required in K's business for one year; K agreeing not to buy elsewhere during that period; statements of account to be rendered every 14 days, B to draw for the amount at two months from date of delivery. K thereafter purchased another company and then transferred the old and new business to a new company of whose shares he held all but seven. When B heard of the amalgamation he refused to supply the eggs to the new company to which K had assigned the contract. Is B guilty of breach in so doing?

§ 152. (Contracts, Sec. 120.) Contractual rights to be acquired in future not assignable.

Case 166. Mulhal v. Quin, 1 Gray's Reports (Mass.),

105.

Facts: An attempted assignment of rights to arise under a contract expected to be made, but not yet made, with the City of Boston.

Point Involved: Can one assign his rights under a contract not made at the time of the attempted assignment?

SHAW, C. J.:

66*

There was no subsisting engagement under which wages were to be earned, and it depended altogether upon a future engagement, whether anything would ever become due.

*

em

"None of the cases go so far as to hold that the mere possibility of earning wages ployment at a future time is capable of being assigned. The debt may be conditional, uncertain as to amount or

Question 166: State the rule of this case.

Case 167. Mallin v. Wenham, 209 Illinois Reports, 252.

Facts: M was employed by A & Company at a salary of $100 per month. He had no definite contract of employment, but was employed by the month. He could have quit or A & Company could have discharged him at any time without liability. To secure a loan from W he executed an instrument stating: "I do hereby transfer, assign and set over to C. F. Wenham all salary or wages due or to become due me from Armour & Co. M now contends that this assignment

was invalid.

*

Point Involved: The assignability of wages to be earned under an existing contract of employment of indefinite duration.

MR. JUSTICE RICKS: 66*

*

An assignment of wages to be earned in the future under an existing employment is valid. It is not necessary that there be an express hiring for a definite time, but the existence of the employment at the time of the assignment is sufficient. In the case at bar, appellant was

in the actual employment of Armour & Company at a fixed price per month. It is true that such employment was not of any definite duration, and appellant might abandon the same at any time or his employer might discharge him. The subject matter of the contract had but a potential existence, but it was such a property right as might legally be disposed of.

Question 167: Was the assignment in this case valid? Why? Distinguish between this and foregoing case.

§ 153. (Contracts, Sec. 121.) Effect of assignment as to assignor.

Case 168. Grommes v. St. Paul Trust Co., 147 Ill. 634. Facts: A was B's tenant. With B's consent he transferred his lease to R, who entered into possession and

for a time paid rent and then defaulted. B sues A for accruing rent.

Point Involved: Whether the lessee continues liable on the lease (as surety) on its assignment with the consent of the lessor.

MR. JUSTICE MAGRUDER:

Nor did the sale

of the saloon by the tenant to Rose, nor the acceptance of rent from the latter by the landlord operate as a discharge (of the original lessees). The assignee of a leasehold estate is liable for the rent accruing. * * In case the rent is not paid by the assignee as it becomes due, an action may be sustained against the lessee therefor; and it makes no difference in this respect that the lessor may have received rent from the assignee and accepted him as a tenant in the premises. If there be not a substitution of the assignee in place of the original lessee, and a clear intent to make a new contract with the former and to discharge the latter from further liability under the lease, both will be held liable to the lessor."

*

Question 168: State the rule set forth in Case 168.

§ 154. (Contracts, Sec. 122.) The assignee as the successor to the title of the assignor.

Case 169. Bank v. Bynum, 84 North Carolina Reports, 24.

Facts: Bynum & Daniel signed an instrument (found by the court to be non-negotiable) setting forth contract between Bynum & Daniel and Taylor Manufacturing Co. and promising to pay a sum of money for goods purchased. The Taylor Mfg. Co. for value sold and assigned this instrument to the Bank, the plaintiff in this case. The Bank sues, and Bynum & Daniel defend that at the time of the assignment the assignor (The Taylor Mfg. Co.), was indebted to Bynum & Daniel in the sum of $305.15, which they now seek to set off in the suit. The bank was innocent of this counterclaim when it acquired the claim.

Point Involved: Whether an assignee of a right under