pork, and mutton that might be required at the hotel for the ensuing year at ten cents per pound. Plaintiff bought the hotel and took an assignment of the meat contract, but defendant refused to continue performance. The court held that the assignment could not be supported, because of the stipulation for credit. The decision might have been rested, however, upon the ground that the seller's agreement to sell at the price mentioned may have been induced by the expectation that the hotel would thrive and that large quantities of meat would be required and ordered. Such expectation would obviously denote a reliance upon the personal judgment and skill of the buyer in the management of the hotel, and would render the contract non-assignable in the sense under discussion.1 In the recent House of Lords Case of Tolhurst v. Associated Portland Cement Manufacturers, already referred to, the importance of this element of reliance upon the peculiar character of the buyer was recognized. The facts of the case were in many respects similar to those of the Arkansas Valley Smelting Co. v. Belden Mining Co.2 Tolhurst, the owner of chalk quarries, made a contract with the Imperial Portland Cement Company by which it was agreed that he would for fifty years supply to the company and that the company should take and buy from him at least seven hundred and fifty tons of chalk per week at a certain price to be paid monthly, and so much more, if any, as "the company shall require for the whole of their manufacture upon their said land," near the quarries. The Imperial Company afterward assigned the contract and sold its works and business to the Associated Company, whereupon Tolhurst claimed that he was not bound to perform to the assignee. As has already been said, the point that the contract was non-assignable because it provided for deliveries on credit does not appear to have been made. But it was strongly urged upon the court that the assignee had a much larger capital and business than the assignor, that it therefore would probably require much larger quantities of chalk, and that the contract had been made in contemplation of the needs of the smaller company only, and that to compel the seller to supply the needs of the larger one would be to compel him to do something very different from that which he had agreed to do. The court 1 See also, Wheeler v. Walton & Whain Co., 64 Fed. 664. held the contract assignable, declaring that little emphasis should be given the words "the Company" and "their" in the contract, and pointing out that the length of the duration of the contract, the fact that there was no reliance upon personal skill or personal confidence, and the further circumstance that the buyer was induced to purchase the land and establish the works by the prospect of advantages flowing from immediate connection with Tolhurst's quarries, precluded the notion that the contract was dependent upon the continuation in business of both parties. "Very great hesitation," however, was expressed by Lord Chancellor Halsbury, and Lord Robertson entered a strong dissent. Before leaving this class of cases, it should be noted that where the buyer engages to give a promissory note for the price of goods, he cannot assign the contract so as to compel the seller to accept the note of his assignee. The duty of giving a promissory note, unlike that of paying money, is plainly personal — the money of the assignee is the same as that of the assignor, but his note is very different.1 For the same reason, a seller cannot delegate his duty of warranting the goods to be delivered under the contract.2 (b) Contracts of agency. 1. Assignment by employer. An assignment by the employer of the benefit of the service, accompanied only by a delegation of the duty of paying the employe, would appear to be unobjectionable. As has been said of the cases of sales, the payment of money is a duty the performance of which requires no particular skill nor judgment nor taste. But if the assignment purports to transfer the right to direct or control the employe's performance, as in nearly every case it must, the employe will be released.3 2. Assignment by employe. Whether the assignment by the employe of his right to compensation, coupled with a delegation of his duty of performance, is sustainable, depends entirely upon the character of the service required by the contract. If the employe be a servant, as distinguished from an agent, whether the performance of his duty requires skilled or common labor, he cannot make such an assignment. For "the servant's character, habits, capacity, industry, and temper, all enter into and affect the contract which the master makes, and are material and essential 1 Rappleye v. Racine Seeder Co., 79 Ia. 220. 2 Sprankle v. Truelove, 54 N. E. (Ind.) 461. 3 Globe, etc., Ins. Co. v. Jones, 89 N. W. (Mich.) 580; Hayes v. Willio, 4 Daly (N. Y. C. P.) 259; Huffcut on Agency § 86; and see Lacy v. Getman, 119 N. Y. 109. where the service rendered is to be personal and subject to the daily direction and choice and control of the master." If he be an agent, the test is whether the performance of his duty involves the exercise of judgment, skill, taste, or discretion. If it does, the reasonable inference is that the principal relied upon his possession of the qualification, and that a vicarious performance will not satisfy the contract.2 And perhaps it should be added, in this connection, that where some of the duties of the agent involve the exercise of discretion and others do not, the former may not be delegated while the latter may. (c) Engagements of Independent Contractors. There are a number of interesting cases involving the right of an independent contractor to transfer both his right to compensation and his duty of performance. Indeed, the most frequently cited illustrations of non-assignable contracts are of this class - engagements to paint a portrait, to make a carriage, to write a book, et cetera. In most of the cases the true test that of intention as manifested by the character of the performance required is recognized and applied. Unfortunately the results are not always harmonious. For example, it is difficult to reconcile the two cases of Robson v. Drummond and British Wagon Company v. Lea, the first holding an engagement to repair and paint a carriage non-assignable, the second holding an engagement to repair railroad wagons assignable. And with reference to public printing contracts there likewise appears to be a conflict of authority, South Dakota holding them assignable and Kansas holding them non-assignable. In this instance, however, it is thought that the two cases may be distinguished. In the South Dakota case the court points out that under the state law the contract must be let to the lowest responsible bidder, the only limitation being that the contract should not be let to parties outside of the state. "It will thus be seen that the question of the personal qualification of the contractor does not enter into the contract. The contract is not for the personal services of the contractor, and he may do the work through agents or assignees." 1 Lacy v. Getman, 119 N. Y. 109, at 115. See also Litka v. Wilcox, 39 Mich. 94. 2 Huffcut on Agency §§ 92-94 and cases cited; also Sloan v. Williams, 138 Ill. 43, and Marquette v. Wilkinson, 78 N. W. (Mich.) 474. In the Kansas case,1 on the other hand, there is nothing in the report to indicate that the printing was let or was required to be let to the lowest bidder, or even that bids were received. The court was justified in inferring, under such circumstances, that the contract was made with a view to the superior qualification of the contractor. For, as the court says: "Printing is an art; it is more than a mere mechanical pursuit. Given the requisite type and other appliances, some who practise it can make a printed page as pleasing to the artistic sense as a picture; while others, with the same advantages, can produce nothing that is not grievous to the judgment, eye, and taste." 2 IV. ASSIGNMENT OF RIGHTS, DELEGATION OF DUTY, AND RENUNCIATION BY ASSIGNOR OF LIABILITY FOR FURTHER PERFORMANCE. That the obligation of a contract cannot be transferred without the consent of the obligee, is fundamental. "You have the right to the benefit you anticipate from the character, credit, and substance of the party with whom you contract." 8 It follows that an assignment which purports to transfer both the rights and the obligations of the contract amounts to a renunciation, and absolves the other party from further performance. This is the meaning, it is presumed, of the oft repeated, though somewhat obscure statement that "Rights arising out of contract cannot be transferred if they are coupled with liabilities," that is to say, coupled with liabilities not in the contract but in the assignment. If the renunciation by the assignor of liability for further performance be express, the case is perfectly clear. But in the absence of express renunciation it is not easy to determine whether by "assigning" the contract it was intended to transfer its obligation or not. Since an attempt so to do would in no case be effective, and moreover would constitute a breach of the contract, it is thought that the presumption should be 1 Campbell v. Comm'rs, 67 Pac. 866. 2 See also Ellis v. State, 4 Ind. 1. In contracts for construction of public works, paving streets, cleaning streets, etc., the contractor is permitted to assign rights and delegate duties: Devlin v. The Mayor, etc., 63 N. Y. 8; City v. Clemens, 42 Mo. 69; Philadelphia v. Lockhardt, 73 Pa. St. 211; Columbia Water Co. v. Columbia, 5 S. C. 225; Ernst v. Kunkle, 5 Oh. St. 520; Taylor v. Palmer, 31 Cal. 240. Other interesting independent contract cases are: Galey v. Melton, 172 Pa. St. 443; Mirror v. Galvin, 55 Mo. App. 412; Pike v. Waltham, 47 N. E. (Mass.) 437; Edison v. Bapka, 69 N. W. (Mich.) 499; Jenkins v. Land Co., 13 Wash. 502; Northwestern Cooperage Co. v. Byers, 95 N. W. (Mich.). 529. 3 Humble v. Hunter, 12 Q. B. 310, at 317. Pollock on Contract (4th ed.) 425. against such an intention, and that when the other party to the contract is notified of the assignment he may perform for the benefit of the assignee without losing his remedy against the assignor. There are many circumstances, however, which might overcome the presumption, and some of the cases holding that the rights and duties of a vendee are non-assignable may be sustained upon this ground. For example, in Hardy v. South Bend Iron Works1 the facts that the assignor was a partnership and that the assignment was made upon its dissolution, might justify the inference of an intention to renounce liability for further performance. Yet such does not appear to have been a ground of decision, for the court says: "We need not discuss whether Mason [the retiring partner] would continue liable to defendant for faithful performance after dissolution of the firm. That is not in issue here." And in British Wagon Company v. Lea2 the fact that at the time of the assignment the assignor company was actually in process of liquidation was not sufficient to lead the court to infer that the intent was to renounce liability. Says the court: "So long as the Parkgate Company [assignor] continues to exist, and through the British Company [assignee] continues to fulfill its obligation to keep the wagons in repair, the defendant cannot, in our opinion, be heard to say that the former company is not entitled to the performance of the contract by them, on the ground that the company had incapacitated themselves from performing their obligations under it, or that by transferring the performance thereof to others they have absolved the defendants from further performance on their part.' In this connection attention must again be called to Arkansas Valley Smelting Company v. Belden Mining Company. Here the contract was assigned twice, - first by Billings & Eilers, upon their dissolution, to Billings, and subsequently by Billings to the plaintiff. It may not be unreasonable to infer from the fact of dissolution of the partnership that the intention of the original buyers, Billings & Eilers, was to renounce liability for further performance. As to the first assignment, therefore, the defendant might well have claimed to be absolved by such renunciation. To quote the opinion of Mr. Justice Gray, the defendant "could not 1 129 Mo. 222. 2 L. R. 5 Q. B. D. 149. 3 See also Horst v. Roehm, 84 Fed. 565, and Tolhurst v. Associated Cement Manufacturers, [1903] A. C. 414. 4 127 U. S. 379. |