A third party is not liable to a contractor for work done on the representation by the owner that said third party would pay for the work. Stidham v. Sanford, 36 N. Y. Super. Ct. 341 (1873).

Where a city has entered into a contract to furnish certain things to the citizens, the city and not the citizen is the proper party to bring action against the company for a breach of such contract. Cleburne W. I. & L. Co. v. City of Cleburne (Tex.), 35 S. W. Rep. 733.

The rules and regulations made by a private company to govern the acts of its agents cannot affect third parties with notice of such rules in contracts between third parties and agents of the company. Blanding v. Davenport etc. Ry. Co. (Ia.), 55 N. W. Rep. 81.

SECTION II.

ASSIGNMENT.

Ordinarily a contract affects only those who are parties to it. However, under certain circumstances the original parties may be changed and others take their places. This may be brought about by the act of the parties themselves or by the operation of rules of law.

(a) By the act of the parties.

1. A promisor cannot assign his liabilities under a contract into which he has entered without the consent of the promisee, nor a promisee be compelled to accept the fulfillment of the contract from any other person than the promisor.1

2. A liability may be assigned by one of the parties with the consent of the other. This amounts to a rescission, by agreement, of one contract and the substitution of another with different parties.

3. At common law the right of action arising from a contract cannot be assigned so as to enable the assignee to sue upon it in his own name. He must sue in the name of the assignor or of his representative.

4. At common law the only way to transfer the rights under a contract is by means of a substituted agreement and not by assignment.2

5. If a debtor promises to pay a third party and the creditor

1 Arkansas Valley Smelting Co. v. Belden Mining Co., 127 U. S. 379. 2 Heaton v. Angier, 7 N. H. 397.

assents to it, the third party cannot maintain an action against the debtor.3

6. If a creditor gives written authority to his debtor to pay a third party and the debtor acknowledges the authority in writing, this will not enable the third party to sue for the amount.*

7. In equity, and in many states according to statute, the rights of action arising out of a contract may be assigned so that the assignee may sue in his own name."

8. Only rights relating to money or property are assignable; a contract for personal service is not assignable."

9. Consideration must pass from the assignee to support the assignment.

10. Notice must be given the other party to the contract in order to bind him by the assignment. This need not necessarily be in writing."

11. In some jurisdictions successive assignees rank as to the priority of notice;10 in others they rank according to the dates on which the creditor assigned his rights to them.11

12. The assignee takes the contract subject to all such defenses

3 McKinney v. Alvis, 14 Ill. 33.

4 Jessel v. Williamsburgh Ins. Co., 3 Hill (N. Y.) 88.

In New York and some other states the statutes now allow the assignee to sue in his own name: N. Y. Code of Civil Procedure, §§ 1909, 1910. These statutes apply simply to the procedure of their own jurisdictions. They do not affect the legal title. If a contract has been assigned in the State of New York and an action brought in Massachusetts, such an action must be brought by the assignee in the name of the assignor. In other words, the above sections of the New York statute affect the adjective and not the substantive law.

"An assignment cannot be enforced in equity if the assignee can proceed at law in the name of his assignor unless the legal remedy would be incomplete or inadequate.'' Carter v. United Ins. Co., 1 Johns. Ch. (N. Y.) 463; Walker v. Brooks, 125 Mass. 241; New York etc. Co. v. Memphis Water Co., 107 U. S. 205. The two cases in which the assignment is most commonly enforced in equity are: first, the assignment of future interests, and second, the assignment of part of a demand. Field v. Mayor, 2 Seld. (N. Y.) 179; James v. Newton, 142 Mass. 366.

7 Hayes v. Willio, 4 Daly (N. Y. C. P.) 259.

& Heerman v. Ellsworth, 64 N. Y. 159.

9 Allen v. Brown, 44 N. Y. 288; Walker v. Mauro, 18 Mo. 564.

10 Van Buskirk v. Hartford Fire Ins. Co., 14 Conn. 141; Clodfelter v.

Cox,.1 Sneed (Tenn.) 330; Ward v. Morrison, 25 Vt. 593.

11 Muir v. Schenck, 3 Hill (N. Y.) 228; Williams v. Ingersoll, 89 N. Y. 598; Thayer v. Daniels, 113 Mass. 129.

as might have been effective against the assignor. That is, the assignor cannot give better title than he has himself.12

13. In the case of negotiable instruments, the holder of the document for the time being has a right of action upon it, though he is unknown to the promisor.18 Notice to the party liable is not necessary. The holder is not subject to such defenses as would be good against his assignor;14 that is, the assignor's title is immaterial.

(b) By operation of law.

1. Death or bankruptcy effects an assignment of the rights and liabilities of the deceased to his executor or administrator, or of the bankrupt to his trustees, merely for the purpose of continuing the legal existence of the deceased or bankrupt.

2. At common law, if a lessee of property assigns his lease, his assignee is bound to the landlord by the same liabilities and is entitled to the same benefits and rights as his assignor if the covenants "touch and concern the thing demised" and are not personal.15 The covenants affecting leasehold interests are said to "run with the land."

3. At common law, if the reversioner or landlord assigned his leasehold interest in the land, he did not formerly convey his rights and liabilities to the assignee. In other words, the covenants did. not run with the reversion. This has been changed by statute. The assignee of the reversion now takes the benefits and is subject to the liabilities of the covenants entered into with his assignor. These covenants must "concern the thing demised" and not be personal. This applies only to leases under seal, but in the case of leases from year to year, payment and acceptance of rent is held to be evidence from which a jury may infer "consent to go on, on the same terms as before."16

4. If the covenant is made with the owner of the land, the person who has the freehold interest, for his benefit and under seal, at

12 Warner v. Whittaker, 6 Mich. 133; Lane v. Smith, 103 Pa. St. 415; Holbrook v. Burt, 22 Pick. (Mass.) 546.

13 Odell v. Gray, 15 Mo. 337; Walker v. Ocean Bank, 19 Ind. 247. 14 New v. Walker, 108 Ind. 365; Walker v. Ebert, 29 Wis. 194.

15 Thompson v. Rose, 8 Cow. (N. Y.) 266; Gordon v. George, 12 Ind. 408; Newburg Petroleum Co. v. Weare, 44 Ohio St. 604.

16 Fisher v. Deering, 60 Ill. 114; Crawford v. Chapman, 17 Ohio St. 449; sce Stimson, Am. St. Law, § 1352.

common law it passes to his assignee provided it touches and concerns the land and is not personal.17

5. In cases of death, covenants attached to a leasehold interest -provided they are not for personal service18 or skill-pass with the personalty, as to benefits and liabilities, to the representatives; while covenants attached to the freehold interest pass to the heirs or devisees with the realty.

6. In case of bankruptcy, since all the bankrupt's property has passed to the trustee, he may disclaim unprofitable contracts within twelve months of his appointment.

CASES.

SECTION II.-ASSIGNMENT.

Assignment by act of the parties: liabilities.

ARKANSAS VALLEY SMELTING CO. v. BELDEN
MINING CO.

127 UNITED STATES, 379.-1888.

Action for damages for breach of contract. Demurrer to complaint sustained. Plaintiff brings error.

Defendants contracted with Billing and Eilers to sell and deliver to them 10,000 tons of carbonated lead ore at the rate of 50 tons a day, on condition that "all ore so delivered shall at once, upon the delivery thereof, become the property of the second party." The ore after delivery was to be sampled and assayed in lots of about 100 tons each, the price to be fixed in accordance with the state of the New York market on the day of the delivery of samples. Defendants delivered some ore to Billing and Eilers under this contract, when the firm was dissolved and the business, together with the above contract, assigned to G. Billing, to whom defendants continued to deliver ore. The business, together with the above contract, was then assigned by G. Billing to plaintiff, who

17 Shaber v. St. Paul Water Co., 30 Minn. 179.

18 Lacy v. Getman, 119 N. Y. 109; Dickinson v. Calahan's Admrs., 19 Pa. St. 227; Siler v. Gray, 86 N. C. 566. Statutes have very greatly enlarged the number of actions which survive.

notified defendant of the fact. Defendant refused to deliver to plaintiff and notified plaintiff that it considered the contract canceled and annulled.

GRAY, J. If the assignment to the plaintiff of the contract sued on was valid, the plaintiff is the real party in interest, and as such entitled, under the practice in Colorado, to maintain this action in its own name. Rev. Stat. § 914; Colorado' Code of Civil Procedure, § 3; Albany & Rensselaer Co. v. Lundberg, 121 U. S. 451. The vital question in the case, therefore, is whether the contract between the defendant and Billing and Eilers was assignable by the latter, under the circumstances stated in the complaint.

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 to be 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; Winchester v. IIoward, 97 Mass. 303, 305; Boston Ice Co. v. Potter, 123 Mass. 28; King v. Batterson, 13 R. I. 117, 120; Lansden v. McCarthy, 45 Missouri, 106. 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 (4th ed.), 425.

The contract here sued on was one by which the defendant agreed to deliver ten thousand tons of lead ore from its mines to Billing and Eilers at their smelting works. The ore was to be delivered at the rate of 50 tons a day, and it was expressly agreed that it should become the property of Billing and Eilers as soon as delivered. The price was not fixed by the contract, or payable upon the delivery of the ore. But as often as a hundred tons of ore had been delivered, the ore was to be assayed by the parties or