under the statute of frauds; that the damages claimed are too uncertain, inconsistent, conjectural, and speculative to permit any recovery. The circuit judge sustained the demurrer. His action is sought to be reviewed in this proceeding. The contract from Sessions to Davison & Gardiner is referred to in the declaration, and a copy of it is attached to the demurrer. Those portions of it that are important in this discussion read: "Said first party agrees to sell to said second parties all the merchantable timber, of every kind and description," on certain premises (describing them). "Said second parties agree to pay for the timber" (describing the amount and manner of payment). "It is further agreed by and between the parties hereto that said second parties shall have the privilege of entering upon said land" to cut and remove the timber, upon certain conditions. "Before removing the timber, or the product manufactured from the same, they shall pay the following sums of money." And the amounts and manner of payment are then stated. Then comes this provision: "The title to said timber, logs, lumber, and shingles to remain in said first party until paid for as above." Davison & Gardiner had the right "to sell the timber upon payment to said party of the first part of such a sum of money as shall be reasonable, and shall be agreed upon by and between the parties." They were to pay one-half the taxes, and perform other conditions stated in the contract, and it was agreed "that, upon the full and complete performance of the covenants and conditions herein contained, * said first party shall execute to said second parties a good and sufficient deed of said timber;" but, in case Davison & Gardiner did not perform their agreement, it was provided "that the first party may, at his option, declare this contract void." The agreement between Davison & Gardiner and Bliss & Van Auken was, in effect, that the former would sell, and did sell, to the latter, all the merchantable timber mentioned in the contract between Sessions and Davison & Gardiner. Bliss & Van Auken agreed to buy said timber, and the contract stated the method of manufacture, the times and terms of payment. At the time of the delivery of this contract there was indorsed upon it in writing, by Sessions, as follows: "I consent to the making of said contract by the parties hereto, so far as the same relates to the timber held under said contract of purchase from me by Davison & Gardiner: Provided, however, that nothing herein shall be deemed a waiver of all rights secured to me in and by said contract of purchase, or an extension or modification of the terms of said contract. In consideration of $1 to me paid, the receipt of which is acknowledged, I further agree that in case said Davison & Gardiner shall make default in said contract of purchase from me, and shall fail to carry out the same, then said Bliss & Van Auken shall be permitted to cut and remove the timber mentioned in the foregoing contract as having been sold by me, upon the payment to me of $1 per 1,000 feet, so to be cut and removed, which payment shall be in accordance with the terms of said contract of purchase by said Davison & Gardiner from me, except as modified above as to price, and shall be made within thirty (30) days after demand therefor, and notice of default on the part of said Davison & Gardiner, as aforesaid." The only writing which passed between Bliss & Van Auken and Jackson reads as follows: "SAGINAW, MICH., August, 1892. "For a valuable consideration, viz., $687.53, to us in hand paid by C. H. Jackson, of Baldwin, of Lake county, Michigan, we transfer, sell, set over, and assign to said C. H. Jackson any and all rights that we may have in and to a certain contract, dated November 7, 1891, made by Davison & Gardiner, of Farwell, Mich., of the first parties, and ourselves, of the second parties; said contract being also approved and consented to by Clarence W. Sessions, trustee. We assume no responsi bility in making this transfer, and Mr. Jackson takes this for what he may recover hereunder. "BLISS & VAN AUKEN, "By W. G. Van Auken." No writing passed between Sessions and Jackson. It is claimed that the consent of Sessions did not amount to an agreement, but was a revocable license, as Bliss & Van Auken did not agree, in case of the default of Davison & Gardiner, to take their places, or to make any payments, and that it must fail for want of mutuality. It is not necessary, in this case, to determine that question, and we express no opinion upon that point. All that Bliss & Van Auken assigned to Jackson was this contract with Davison & Gardiner. There is no claim that Sessions assented in writing to the assignment of the Bliss & Van Auken contract to Jackson, or that anything was paid to him, as a consideration therefor, by Jackson. Jackson did not agree with Davison & Gardiner to take any of the logs or timber, nor with Bliss & Van Auken that he would take their place in the Davison & Gardiner contract; nor did he agree with Sessions that, if Davison & Gardiner defaulted in their contract, he would go on and take their place and make the payments; nor did he tender an agreement in writing to do any of these things. Neither did he tender any payment for the timber. If, after he procured the assignment from Bliss & Van Auken, Jackson had done nothing, he would have incurred no liability. Neither Davison & Gardiner nor Sessions had any legal claim against him. The timber never has been paid for. Davison & Gardiner have defaulted. No one is so related to them in the Sessions contract that he can enforce it against any one but them. It would be a strange legal proposition to say that a contract which might result in acquiring title to a large amount of timber could rest in parol, be created without any consideration passing between the parties to it, and that it need not have two parties, and yet could be enforced. Giving the fullest effect to what Jackson claims occurred between him and Sessions, it does not establish a contract that could be enforced. It fails for want of mutuality. In Clark, Cont. p. 523, it is stated: * * * "A contract cannot affect any but the parties to it, either by imposing liabilities or conferring rights on them. The original parties to a contract, however, may, under certain circumstances, drop out, and others may take their places. In this way the contractual obligation does pass to persons who were strangers to the contract when originally made; and this would, at first thought, seem to furnish an exception to the rule we have been discussing. The exception, however, is only apparent, for the persons so affected do actually become parties to the contract, either by their own voluntary consent, or by operation of law; and even the law does not confer rights or impose liabilities without the consent of the parties, or at least without voluntary acts on their part which prevent their refusing consent. The operation by which this change in the contractual relation is effected is termed an 'assignment of the contract.' It is the settled rule, subject to exceptions which are apparent rather than real, that a person cannot assign his liabilities under a contract, or, to put the matter from the point of view of the other party to the contract, a person cannot be compelled to accept performance of a contract from a person who was not originally a party to it. The reason for the rule lies, not only in the right of a person to know to whom he is to look for the satisfaction of his rights under a contract, but more particularly in his right to the benefit which he contemplates from the character, credit, and substance of the person with whom he has contracted. Humble v. Hunter, 12 Q. B. 310; Arkansas Val. Smelting Co. v. Belden Min. Co., 127 U. S. 379; Chapin v. Longworth, 31 Ohio St. 421; Rappleye v. Seeder Co., 79 Iowa, 220; Burger v. Rice, 3 Ind. 125; Bethlehem v. Annis, 40 N. H. 34 (77 Am. Dec. 700); Lansden v. McCarthy, 45 Mo. 106; Donelson v. Polk, 64 Md. 501; Stewart v. Railroad Co., 102 N. Y. 601 (55 Am. Rep. 844), and cases there cited." In Davie v. Mining Co., 93 Mich. 496, it is said: "Contracts cannot arise where there is no mutuality; nor can they arise from the action of one party alone, where the other has no power to prevent his action." See Mc Donald v. Bewick, 51 Mich. 79, and cases there cited; It is not necessary to discuss the other questions presented by the demurrer. The case is affirmed, with costs. MARQUETTE OPERA HOUSE BUILDING CO. v. WILSON. 1. BUILDING CONTRACT-ACTION AGAINST SURETIES-Defenses. 2. SAME. Plaintiff cannot, under such circumstances, be compelled to 3. SAME-CONSTRUCTION OF BOND-LIABILITY OF SURETIES. 109 223 109 668 |